Sowell v. Anderson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0290p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellee/Cross-Appellant, -
BILLY JOE SOWELL,
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Nos. 08-3522/3575
v.
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>
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CARL ANDERSON, Warden, Mansfield

Respondent-Appellant/Cross-Appellee. -
Correctional Institution,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 94-00237—Edmund A. Sargus, Jr., District Judge.
Argued: October 13, 2010
Decided and Filed: November 15, 2011
Before: BATCHELDER, Chief Judge; MOORE and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Mark A. Vander Laan, DINSMORE & SHOHL LLP,
Cincinnati, Ohio, for Appellee. ON BRIEF: Robert E. Prather, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark A. Vander
Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, Randall L. Porter, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which MOORE, J., joined.
BATCHELDER, C. J. (pp. 26–32), delivered a separate opinion concurring in part and
dissenting in part.

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OPINION
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ROGERS, Circuit Judge. Billy Joe Sowell was convicted of aggravated murder
and sentenced to death by a three-judge panel in 1983. At sentencing, counsel’s
mitigation strategy was to portray Sowell as a good person who lost his temper under the
influence of drugs and alcohol. Counsel pursued this strategy despite having available
the reports of several court-appointed mental health experts, which hinted at Sowell’s
difficult upbringing but did not provide specific details about his severely impoverished
and abusive childhood. Despite these reports, counsel did not conduct an investigation
into Sowell’s background or interview any of his family members. Had they done so,
there is a reasonable probability that the additional mitigating evidence would have led
at least one of the panel judges to vote against the death penalty. The district court
therefore properly granted habeas relief on this basis.

I.

The facts underlying Sowell’s conviction are not in dispute. As we did in our
initial review of Sowell’s petition, we rely on the Ohio Court of Appeals’ version of the
facts:

The record discloses that [Sowell] and [Calvert] Graham resided
in adjacent apartments on the third floor of an apartment building in
downtown Cincinnati. [Sowell] was the resident manager of the building
and became acquainted with Graham, who performed occasional odd
jobs at the apartment building. After Graham became a resident in
[Sowell’s] apartment building, the two men developed a friendly
relationship and visited one another in their respective residences.
On May 1, 1983, three days prior to the instant offenses, [Sowell]
was a guest in Graham’s apartment. Also present were Donna Edwards
(Edwards), a woman with whom Graham shared the apartment, and
[Pam] Billups [a former prostitute who had been visiting Graham and
Edwards]. Graham offered two marijuana cigarettes to [Sowell], which
he accepted. Thereafter [Sowell] left the apartment in the company of
Billups and proceeded to a nearby restaurant where he purchased dinner
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for her. En route to the restaurant, [Sowell] smoked the second
marijuana cigarette, having consumed the first at Graham’s residence.
Thereafter the pair made their way to a hotel where [Sowell] rented a
room. There was conflicting testimony concerning the events that
transpired thereafter. However, it is not disputed that [Sowell] eventually
lost consciousness, having consumed an unspecified quantity of wine
during the evening in addition to the marijuana. The next morning
[Sowell] made his way back to his residence, stopping along his route to
obtain breakfast for Billups.
[Sowell] next encountered Billups on the afternoon of May 4,
1983. Billups was in the company of Edwards and the trio passed in the
doorway of a store but did not acknowledge one another. As will be
seen, this seemingly inconsequential meeting gained significance later in
the day.
That evening [Sowell] returned to his apartment building after,
according to his testimony, visiting no less than five taverns and
consuming at least one double shot of vodka at each stop. Upon
returning to his apartment building [Sowell] realized that he was not in
the mood to retire for the evening, and instead presented himself at
Graham’s apartment. Graham greeted [Sowell] and invited him inside,
where Edwards and Billups were also present. Graham produced a
marijuana cigarette which was consumed by all four occupants.
[Sowell] testified before the trial court that following the
consumption of the marijuana, he fell asleep for a short time. When he
awoke the others were still present and [Sowell] discovered that
approximately $190 had been removed from his trouser pocket. At first
[Sowell] thought that the trio was playing a joke upon him; however, his
requests for the return of his money received no response. [Sowell]
further testified that Graham then picked up a knife and ordered [Sowell]
to leave the residence. [Sowell] complied and departed, but he was
extremely angry as a result of his loss.
Both Billups and Edwards told the trial court that [Sowell’s] visit
to the apartment on the day in question was at first friendly. However,
[Sowell] soon became agitated and accused Billups of being unsociable
in that she did not speak to him earlier that afternoon. [Sowell] also
accused Billups of stealing $24 from him during their encounter three
days earlier. When [Sowell] referred to Billups in terms meant to insult
her pedigree, Graham ordered [Sowell] to leave the premises. [Sowell]
left, stating that he was going to obtain his gun, return and shoot Billups.
[Sowell] went directly to his apartment where he directed his
common-law wife, Lenora Waugh (Waugh), to bring his gun to him.
Waugh complied with that request, as well as with [Sowell’s] instructions
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to accompany him to Graham’s apartment. Upon returning to Graham’s
door, Waugh, at [Sowell’s] instruction, knocked and indicated to those
inside that she was a woman named Portia. Graham responded to the
door and opened it. Edwards and Billups testified, and the trial court
found, that [Sowell] forced his way into the apartment, firing a bullet
from his handgun into the ceiling as he entered. [Sowell] demanded to
know Billups’s whereabouts and threatened to shoot her. Graham was
able to calm [Sowell] and began to escort him from the apartment and to
close the door, whereupon [Sowell] suddenly turned and shot Graham in
the abdomen. As Graham fell, [Sowell] fired a second shot into
Graham's skull. Graham fell to the floor, mortally wounded.
[Sowell] next made his way to the closet in which Billups was
cowering, and fired three bullets into her body. [Sowell] next placed the
gun to Billups’s forehead and pulled the trigger. However, the gun did
not expel a bullet because it no longer contained ammunition. [Sowell]
left the apartment after warning Edwards not to leave the premises or he
would shoot her also. [Sowell] returned to his apartment, obtained
money and made his way to a nearby tavern where he was apprehended
by the police.
[Sowell] testified regarding the shootings and told the court that
he returned to Graham’s apartment to demand his money and that he was
confronted by Graham, who was armed with a knife. [Sowell] stated that
it was only after Graham made a furtive movement that [Sowell] began
shooting at Graham, and that one of the bullets struck the ceiling.
[Sowell] explained his conduct as follows: “It just, I just clocked out.
When I seen that person going this way I just pivoted, I pivoted on my
gun, I was shooting, I was angry, I started shooting, I just started
shooting everybody I seen.”

State v. Sowell, No. C-830835, 1986 WL 9082, at *1-2 (Ohio Ct. App. Aug. 20, 1986)
(footnotes omitted).

Sowell was indicted on one count of aggravated murder for the shooting of
Graham, and one count of attempted murder for the shooting of Billups. The aggravated
murder count contained a capital specification alleging that the shooting was part of a
course of conduct involving the purposeful killing of or attempt to kill two or more
persons. See O.R.C. § 2929.04(a)(5). Relying on the advice of trial counsel, Sowell
waived his right to a jury trial and opted for trial by a three-judge panel, see O.R.C.
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§ 2945.06, which unanimously found Sowell guilty of both counts, including the capital
specification.

The defense’s mitigating evidence consisted of an unsworn statement by Sowell,
the testimony of five witnesses who knew Sowell as an adult, and the submission of
several psychological reports prepared by court-appointed mental health experts. Also
before the panel was the presentence investigation (PSI) report prepared by the probation
department. None of this material revealed any substantial details about Sowell’s
background or family history. The panel unanimously sentenced Sowell to death on the
aggravated murder count, and to a term of seven to twenty-five years of imprisonment
on the attempted murder count. Sowell’s conviction and sentence were upheld on direct
appeal and his petition for state post-conviction relief was unsuccessful at trial and on
appeal.

Sowell’s federal habeas petition was initially dismissed without prejudice for
failure to exhaust the Ohio Supreme Court’s Murnahan procedure for raising claims of
ineffective assistance of appellate counsel. See State v. Murnahan, 584 N.E.2d 1204,
1209 (Ohio 1992). After the Ohio courts denied his Murnahan motions, Sowell renewed
his federal habeas petition on May 24, 1994, raising fifty-two claims. The district court
conducted an evidentiary hearing allowing Sowell to develop one of these claims—that
his waiver of a jury trial was not knowing and intelligent. Our initial review of Sowell’s
petition reversed the district court’s conditional grant of habeas relief on that claim.
Sowell v. Bradshaw, 372 F.3d 821, 838 (6th Cir. 2004).

The district court reopened Sowell’s petition on November 16, 2004, and
addressed his remaining claims. In a carefully reasoned opinion, the district court found
that Sowell received ineffective assistance of counsel during the penalty phase of his
trial. Sowell v. Collins, 557 F. Supp. 2d 843 (S.D. Ohio 2008). After reviewing the
mitigating evidence presented to the three-judge panel, the court compared this with the
additional mitigating evidence that was submitted in Sowell’s state post-conviction
petition. The court noted that “virtually all of the evidence presented [at sentencing]
concerned good deeds performed by petitioner during his adult life.” Id. at 852. In
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contrast, the court noted, the additional mitigating information concerned evidence that
“petitioner grew up in extreme poverty and suffered severe abuse and neglect as a child.”
Id. at 852-53.

The district court found that counsel’s failure to discover this entirely different
category of mitigating evidence was constitutionally deficient performance. Id. at 866-
71 (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). Counsel did not
perform an adequate sentencing-phase investigation, the court reasoned, because they
“fail[ed] to interview members of petitioner’s family” and “ignored known leads that
might have helped them to prepare their case in mitigation.” Id. at 870-71. The district
court found that Sowell was prejudiced by his attorneys’ performance because “a
reasonable probability exists that the outcome would have been different had more
detailed information been presented regarding petitioner’s tragic childhood and social
development.” Id. at 871. The court rejected the argument that this evidence was
“merely cumulative of information that was presented” in the written reports of the
court-appointed experts, because the new information was “significant,” “qualitatively
different,” and “would have painted an entirely different portrait” of Sowell. Id. at 872.
The court granted a conditional writ on Sowell’s ineffective-assistance claim and denied
relief on all of the remaining grounds.

The Government appeals the district court’s conditional grant of habeas relief on
the ineffective-assistance claim. Sowell cross-appeals, challenging the district court’s
dismissal of five of his claims: (1) ineffective assistance of counsel during the trial’s
guilt phase; (2) violation of Sowell’s due process rights based on an ex parte meeting
between the presiding judge and members of the probation department; (3) certain
alleged sentencing errors; (4) insufficient evidence to support his convictions; and
(5) suppression of exculpatory evidence by the prosecution. For substantially the
reasons set out by the district court, the grant of a conditional writ on the claim that
counsel were ineffective during the penalty-phase proceeding was proper, and Sowell’s
remaining grounds for habeas relief are without merit.
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II.

This case is not governed by the strict limits on federal habeas review imposed
by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Because
Sowell filed his habeas petition in 1994, the pre-AEDPA standard of review applies.
Sowell, 372 F.3d at 828. Under this standard, a state court’s factual findings are entitled
to a presumption of correctness that is rebuttable by convincing evidence, McQueen v.
Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), while the state court’s determination of
questions of federal law or mixed questions of federal law and fact are reviewed de
novo, Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001). The pre-AEDPA
standard of review “entitle[s] [Sowell] to have the federal habeas court make its own
independent determination of his federal claim, without being bound by the
determination on the merits of that claim reached in the state proceedings.” Wainwright
v. Sykes, 433 U.S. 72, 87 (1977).

A. Ineffective Assistance of Counsel During the Penalty Phase

Application of this standard leads to the conclusion that Sowell received
ineffective assistance during the penalty phase of his capital trial. Trial counsel failed
to uncover and present evidence of Sowell’s deprived and abusive childhood, which left
the sentencing panel unaware of a substantial body of mitigating evidence that could
have led at least one of the judges to vote against the death penalty. Because we uphold
the district court’s determination that counsel’s failure to conduct an adequate
sentencing-phase investigation fell short of constitutional standards, it is not necessary
to address Sowell’s other arguments that his counsel’s performance during the penalty
phase was deficient.

1. Deficient performance

Sowell’s attorneys performed deficiently because they did not interview Sowell’s
family members or investigate references to his horrific childhood contained in the
reports of court-appointed mental health experts. Counsel’s failure to interview Sowell’s
family was inconsistent with their obligation to conduct a thorough sentencing-phase
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investigation, see Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (per curiam), and was
unreasonable in light of the “leads” contained in the experts’ reports, which should have
prompted counsel to investigate further, see Wiggins v. Smith, 539 U.S. 510, 534 (2003).
Because they were not aware of this additional mitigating evidence, Sowell’s attorneys
were not in a position to make a conscious, strategic decision about the type of
mitigation case to present at sentencing.

Counsel’s mitigation strategy at sentencing was to present Sowell as a good
person who lost his temper because he felt betrayed by his friend Graham. The
mitigation evidence consisted of Sowell’s unsworn statement, the testimony of five
witnesses—Lenora Waugh, two probation officers, and two work colleagues—who
knew Sowell as an adult, and the submission of several competency and capacity
evaluations. As the district court noted, almost all of the testimony involved good deeds
Sowell had done as an adult. Sowell, 557 F. Supp. 2d at 852. The witnesses gave
specific examples of times when Sowell had helped them in need and had attempted to
prevent crimes in his community. They testified that Sowell was kind-hearted,
trustworthy, a hard worker, and a good father. The psychological reports likewise
described Sowell as “a most righteous man with a high moral sense” who was “proud
of his good works.” But their discussion of Sowell’s background was perfunctory, and
none of the witnesses shed any light on Sowell’s childhood or family history. Direct
examination of the six witnesses totaled only thirty-four pages of transcript. Counsel
failed to call any family members to testify, and the panel did not learn anything
substantial about Sowell’s formative years.

There is nothing wrong with a mitigation strategy that emphasizes a capital
defendant’s redeeming qualities. But Sowell’s attorneys did not make a conscious
choice among available alternative strategies because they overlooked an entire category
of compelling mitigating evidence—evidence that might have caused the sentencing
panel to rethink its assessment of Sowell’s moral culpability. Counsel’s failure to
present evidence of Sowell’s horrific childhood resulted from their ignorance of this
evidence, not from an informed choice between mutually exclusive mitigation theories.
Nos. 08-3522/3575 Sowell v. Anderson Page 9

Sowell’s attorneys failed to uncover this additional mitigating evidence—and therefore
performed deficiently—for two reasons.

First, counsel did not interview any of Sowell’s family members, including his
father, brothers, sisters, and other relatives. Affidavits of fourteen family members and
friends accompanied Sowell’s state post-conviction petition, recounting the violence and
privation of Sowell’s childhood. Many of these witnesses stated that they would have
been available and willing to testify at the penalty phase but had not been asked to do
so. Sowell’s attorneys did not contact a single member of his immediate family, and
only Sowell’s father spoke with the social worker who compiled information for the
psychological evaluations.

Counsel’s failure to interview Sowell’s family fell short of the “reasonable”
investigation required by the Sixth Amendment, as well as the then-prevailing standards
“articulated by the American Bar Association (ABA)—standards to which we long have
referred as ‘guides to determining what is reasonable.’” Wiggins, 539 U.S. at 524
(quoting Strickland, 466 U.S. at 688)). As in Porter, “[i]t is unquestioned that under the
prevailing professional norms at the time of [defendant’s] trial, counsel had an
‘obligation to conduct a thorough investigation of the defendant’s background.’” 130
S. Ct. at 452 (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)). These standards
required counsel to make efforts to “‘explore all avenues leading to facts relevant to . . .
the penalty in the event of conviction,’” including evidence of Sowell’s “‘background,
education, . . . family relationships, and the like.’” Bobby v. Van Hook, 130 S. Ct. 13,
17 (2009) (quoting 1 ABA Standards for Criminal Justice 4-4.1, at 4-53 (2d ed. 1980)).
In choosing not to interview Sowell’s family members, his attorneys failed in their
obligation to conduct a “thorough” investigation.

Of course, these professional standards did not require Sowell’s attorneys to
contact every person who ever knew Sowell during every period of his life, and “there
comes a point at which evidence from more distant relatives can reasonably be expected
to be only cumulative, and the search for it distractive from more important duties.” Van
Hook, 130 S. Ct. at 19 (2009). But Sowell’s attorneys stopped well short of that point.
Nos. 08-3522/3575 Sowell v. Anderson Page 10

While there is a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance,” Strickland, 466 U.S. at 689, “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). An attorney does not make
a strategic decision by choosing to ignore a body of evidence, the contents of which are
unknown. That is not strategy.

Because counsel did not interview Sowell’s family members, the panel did not
learn that Sowell’s early life was abusive, impoverished, and totally chaotic. The
affidavits of Sowell’s father, brothers, sisters, and family friends describe in vivid detail
the physical and psychological abuse Sowell endured as a child. Sowell’s father was a
serious alcoholic who beat his wife and children on a regular basis. His father was
frequently absent for long periods of time, but when he was home, the family lived in
terror. To avoid setting off a drunken outburst, Sowell and his siblings would not speak
while their father was home. Sowell’s mother was only 15 years old when she got
married. She lacked basic parenting skills and vocally wished her children were dead
or had never been born. She was petrified of Sowell’s father and would not defend the
children from his drunken beatings. To escape the domestic violence, she often fled the
home, leaving the children without supervision for days at a time. Sowell’s parents
eventually divorced, but Sowell and his siblings remained with their father. The abuse
continued into Sowell’s adolescent years. On one occasion, Sowell’s father tied him and
his sister JoAnn to a chair and beat them until a neighbor intervened. Sowell’s father
also sexually molested Sowell’s sister Catherine and threatened to pour gasoline over her
and watch her burn if she reported it.

The affidavits also paint a picture of extreme poverty. The panel did not learn,
for example, that Sowell’s infant brother died of starvation and that Sowell and his
siblings had to beg for and steal food. The children were bitten by rats, infected with
worms, and lacked sufficient clothing and shoes. The entire family—all six
children—lived in a small trailer and later moved into an unfinished basement that
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lacked electricity or running water. By the time Sowell was fourteen, he was living in
a junkyard, on his own, in a tent. None of Sowell’s siblings has fared any better in life.
JoAnn became a prostitute and killed her pimp. She died a week before the murder in
this case. Larry Sowell shot his brother Benny and served time for manslaughter. Benny
and Henderson Sowell, Jr. were both incarcerated for burglary. Four of the five children
who survived were alcohol or drug addicts. “[A] competent attorney, aware of this
history, would have introduced it at sentencing,” Wiggins, 539 U.S. at 535, and counsel’s
failure to do so here was deficient.

Second, counsel failed to uncover compelling evidence of Sowell’s background
because they did not follow up on the obvious leads contained in the written reports of
court-appointed experts. “In assessing the reasonableness of an attorney’s
investigation, . . . a court must consider not only the quantum of evidence already known
to counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further.” Wiggins, 539 U.S. at 527. The question is “whether counsel
adequately followed up on the ‘leads’ that were available to them,” Haliym v. Mitchell,
492 F.3d 680, 712 (6th Cir. 2007), or whether counsel instead “abandon[ed] their
investigation at an unreasonable juncture,” Wiggins, 539 U.S. at 527. Our decision in
Harries v. Bell, 417 F.3d 631 (6th Cir. 2005), illustrates the point. In that case, we held
that interviews conducted by counsel “produced viable leads regarding Harries’s poor
mental health and troubled family background,” and held that “[c]ounsel’s failure to
follow these promising leads . . . was deficient.” Id. at 639.

Here, the psychological reports would have prompted a reasonable attorney to
expand the investigation beyond the redeeming aspects of Sowell’s adult life. The
district court summarized the indications of Sowell’s troubled childhood in these reports
as follows:

Dr. [Nancy] Schmidtgoessling’s mitigation report noted that petitioner
had a “rough childhood” and “an unhappy home life.” She reported that
petitioner experienced a “lack of adequate food, clothing and material
goods as well as [a] lack of close parental nurturance.” According to her
report, petitioner felt “abandoned, angry, without significant stable
relationships, and conscious of the need to defend himself in a dangerous,
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hostile environment.” She relayed that petitioner was “on his own” at a
young age, that he skipped school, and that he ran away for days at a
time. Dr. Schmidtgoessling noted petitioner’s history of depression and
alcohol abuse. Likewise, Dr. [James] Titchener reported that petitioner’s
mother was distant, that she frequently left her family, and that her
abandonment was responsible for much of the anger and hostility
petitioner experienced. Dr. [William] Walters noted that petitioner’s
father was a “strict disciplinarian” and that the Sowell family was very
poor. Walters, Schmidtgoessling, Titchener and [Dr. Emmett] Cooper all
noted that alcohol and marijuana use contributed to that events leading
up to the murder.

Sowell, 557 F. Supp. 2d at 869. These hints of a childhood filled with privation and
abuse should have moved Sowell’s attorneys to expand the scope of their investigation.
Instead, Sowell’s attorneys “ignored pertinent avenues for investigation of which [they]
should have been aware.” Porter, 130 S. Ct. at 453.

The Supreme Court’s decision in Wiggins strongly supports the district court’s
conclusion that counsel performed deficiently in failing to follow up on these leads. In
Wiggins, counsel abandoned their investigation of Wiggins’ background “after having
acquired only rudimentary knowledge of his history from a narrow set of sources.”
539 U.S. at 524. The PSI report and Department of Social Services (DSS) records that
counsel obtained revealed that Wiggins’ mother was a chronic alcoholic; that Wiggins
was “shuttled from foster home to foster home and displayed some emotional
difficulties” while there; that he had “frequent, lengthy absences” from school; and that,
“on at least one occasion, his mother left him and his siblings alone for days without
food.” Id. at 525. Despite these promising leads, counsel did not investigate further.
The Supreme Court held that “any reasonably competent attorney would have realized
that pursuing these leads was necessary to making an informed choice among possible
defenses.” Id. at 525. “Counsel’s decision not to expand their investigation beyond the
PSI and DSS records” was “unreasonable in light of what counsel actually discovered
in the DSS records.” Id. at 524.

More recently in Porter, 130 S. Ct. at 453, the Supreme Court held that counsel’s
failure to interview the defendant’s family members and obtain school, medical, or
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military service records was constitutionally deficient. Id. Like the counsel in Wiggins,
Porter’s attorney did not follow up on leads contained in court-ordered competency
evaluations, which “collectively reported Porter’s very few years of regular school, his
military service and wounds sustained in combat, and his father’s ‘over-discipline[e].’”
Id. This court has also recently found deficient performance where defense counsel did
not follow up on leads developed from a narrow set of sources. Goodwin v. Johnson,
632 F.3d 301 (6th Cir. 2011). In that case, defense counsel interviewed some of
Goodwin’s family members, but did not contact his mother, sister, neighbors and friends,
or the mother of Goodwin’s child. We held that “[t]he information Goodwin’s counsel
possessed, obviously incomplete, should have triggered a more thorough investigation
of Goodwin’s past.” Id. at 324.

As the district court recognized, “[t]his is not a case where counsel presented
absolutely no evidence in mitigation.” Sowell, 557 F. Supp. 2d at 871. The evidence
counsel did present was intended to draw out the redeeming qualities that made Sowell’s
life worth sparing. But counsel’s decision to emphasize Sowell’s worthwhile adult life
while leaving out his horrific childhood is not easily considered a reasonable mitigation
strategy, particularly where the additional evidence would not have been inconsistent
with—and might even have strengthened—the mitigation case counsel did present. “The
evidence concerning petitioner’s horrific upbringing that counsel failed to present would
have bolstered their mitigation case by demonstrating that petitioner was capable of
generosity and good acts in spite of the upbringing that he endured.” Id. at 872. This
case is therefore different from Sears v. Upton, 130 S. Ct. 3259, 3261-62 (2010) (per
curiam), where counsel’s mitigation strategy of emphasizing Sears’ “stable, loving,” and
“privileged” childhood backfired when the prosecutor used this evidence to argue that
Sears was even more culpable than he would have been had he grown up as a “deprived
child from the inner city . . . who[m] society ha[d] turned its back on at an early age.”

More importantly, even if a decision to “emphasize the good rather than the bad”
were a reasonable mitigation strategy in the abstract, Sowell, 557 F. Supp. 2d at 871, it
was not reasonable in this case because counsel were not fully aware of their options.
Nos. 08-3522/3575 Sowell v. Anderson Page 14

The Supreme Court has found deficient performance even in “cases in which counsel
presented what could be described as a superficially reasonable mitigation theory during
the penalty phase.” Sears, 130 S. Ct. at 3266. Thus, notwithstanding the mitigation case
counsel did present, our “principal concern in deciding whether counsel exercised
reasonable professional judgment is whether the investigation supporting counsel’s
decision not to introduce mitigation evidence of [defendant’s] background was itself
reasonable.” Wiggins, 539 U.S. at 523 (emphasis in original). In this case, as in
Wiggins, “counsel were not in a position to make a reasonable strategic
choice . . . because the investigation supporting their choice was unreasonable.” Id. at
536.

As the district court explained, this is also not a case where counsel could have
legitimately feared that digging deeper into Sowell’s past would turn up evidence that
was more damaging than favorable. Sowell, 557 F. Supp. 2d at 873. Sowell’s entire
criminal record and arrest history were included in the PSI report and the mental health
evaluations that were submitted to the panel at sentencing. The psychological reports
also thoroughly documented Sowell’s short temper and his propensity for responding
violently to perceived injustices, especially when drinking. Thus, the panel already
knew the worst. Further investigation could only have helped Sowell. This case
therefore differs from Wood v. Allen, 130 S. Ct. 841, 847-49 (2010), where counsel had
made a strategic decision not to investigate Wood’s mental deficiencies, despite having
available a favorable expert report on the matter, because the report also contained
details about Wood’s 19 earlier arrests and his attempt to murder a prior ex-
girlfriend—rebuttal evidence that counsel had been successful in excluding at trial. Id.
at 850 n.3. Sowell’s case is also different from Burger v. Kemp, 483 U.S. 776, 794
(1987), in which a limited investigation was reasonable because all potential witnesses
interviewed by counsel provided information that was more harmful than helpful.
Without knowledge of the mitigating side of Sowell’s background, his attorneys could
not have made a conscious, strategic judgment that this evidence would do more harm
than good.
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2. Prejudice

Turning to the second prong of Strickland, Sowell was prejudiced by his
attorneys’ performance because, as the district court found, “there is a reasonable
likelihood that at least one member of the three-judge panel would have voted in favor
of a sentence less than death if the panel had been informed of Sowell’s dysfunctional
childhood.” Sowell, 557 F.3d at 866. The additional mitigating evidence differs in
strength and in subject matter from the evidence the panel heard, and the evidence is
therefore not cumulative. And far from being inconsistent with counsel’s mitigation
strategy, the information concerning Sowell’s background would have strengthened
counsel’s mitigation theory that Sowell was a good person because it was highly relevant
to any assessment of his moral worth.

To establish prejudice, Sowell must demonstrate that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different. See Strickland, 466 U.S. at 694. “In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating evidence.” Wiggins,
539 U.S. at 534. Thus, in a capital case, “the question is whether there is a reasonable
probability that, absent the errors, the sentencer—including an appellate court, to the
extent it independently reweighs the evidence—would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.” Strickland, 466
U.S. at 695. Additional mitigating evidence that is “merely cumulative” of that already
presented does not undermine the results of sentencing. Broom v. Mitchell, 441 F.3d
392, 410 (6th Cir. 2006). Instead, “the new evidence . . . must differ in a substantial
way—in strength and subject matter—from the evidence actually presented at
sentencing.” Tibbetts v. Bradshaw, 633 F.3d 436, 444 (6th Cir. 2011) (internal
quotations omitted).

Here, the additional mitigating evidence is sufficient to “undermine confidence
in the outcome” of Sowell’s sentencing proceeding. See Strickland, 466 U.S. at 694.
As in Williams, 529 U.S. at 398, “the graphic description of [defendant’s] childhood,
filled with abuse and privation, . . . might well have influenced the [panel’s] appraisal
Nos. 08-3522/3575 Sowell v. Anderson Page 16

of his moral culpability.” Though the mitigating evidence regarding Sowell’s childhood
is extensive, the panel heard only about Sowell’s adult life. The testimony at sentencing
supports counsel’s theory that Sowell’s life had residual value. But what is key to the
prejudice inquiry is the evidence the panel did not hear—specific details about Sowell’s
“nightmarish” childhood. See id. at 395.

This evidence is not merely cumulative. There is no question that the additional
mitigating evidence is stronger than anything the panel learned about Sowell’s
background from the written reports of Drs. Schmidtgoessling, Titchener, and Walters.
These reports spoke in generalities that lacked any details of the severe abuse and abject
poverty Sowell experienced as a child, or any “graphic descriptions” of the atmosphere
of violence that permeated his formative years. See id. at 398. In contrast, Sowell’s
family members offered first-hand, eyewitness accounts of specific examples of extreme
poverty and abuse. These specifics had far more evidentiary power than the abstractions
and oblique references contained in the experts’ written reports.

What is more, the experts themselves never heard any of these details when they
conducted their evaluations. Drs. Schmidtgoessling, Titchener, and Cooper interviewed
only Sowell and had no contact with his family members. Only the social worker who
compiled information for Dr. Walters’ pretrial examination had any contact with
Sowell’s family, and she spoke only with Sowell’s father—a source who had good
reason to withhold the most compelling examples of abuse Sowell and his siblings
endured as children. The reports of Drs. Titchener and Walters were not prepared for
mitigation purposes, and there is nothing in Dr. Cooper’s report about Sowell’s
background. These experts were appointed to evaluate Sowell’s competence to stand
trial and his mental capacity for purposes of exploring an insanity defense, and to the
extent their reports discuss Sowell’s background at all, they are drawn from an even
narrower set of sources than those available to defense counsel.

The subject matter of the additional mitigating evidence is different as well. The
good deeds Sowell had done as an adult provide an incomplete picture of his moral
worth. Sowell’s actions as an adult—good and bad—are merely a snapshot in time,
Nos. 08-3522/3575 Sowell v. Anderson Page 17

unilluminated by the longitudinal perspective that his developmental history provides.
“[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.” Penry v.
Lynaugh, 492 U.S. 302, 319 (1989) (internal quotations omitted). Moreover, Sowell’s
good deeds might have been written off as isolated incidents or attributed to ulterior
motives by a sentencing judge disinclined to see Sowell as a basically good person. But
the additional mitigating evidence is of more than a few scattered incidents. It is
evidence of a lifetime of privation and abuse, beginning in early childhood and
continuing throughout the formative years of Sowell’s life.

The evidence the panel did not hear—specific details about Sowell’s horrific
childhood—is often the kind of evidence that undermines a court’s confidence in the
outcome of a capital sentencing proceeding. In Williams, 529 U.S. at 395, the Supreme
Court found prejudice where counsel failed to present evidence that Williams had a
“nightmarish” childhood, that his “parents were imprisoned for the criminal neglect” of
their children, and that Williams “had been severely and repeatedly beaten by his
father.” Similarly in Wiggins, 539 U.S. at 535, the Court found prejudice where counsel
failed to discover “powerful” evidence of “severe privation and abuse in the first six
years of [Wiggins’] life while in the custody of his alcoholic, absentee mother,” as well
as evidence of “physical torment, sexual molestation, and repeated rape during his
subsequent years in foster care.” Again in Rompilla v. Beard, 545 U.S. 374, 392-93
(2005), the Court found prejudice where counsel failed to present evidence that Rompilla
was reared in abject poverty and suffered extreme physical and psychological abuse,
which included being “locked . . . [with] his brother Richard in a small wire mesh dog
pen that was filthy and excrement filled.” And in Porter, 130 S. Ct. at 449, the Court
found prejudicial counsel’s failure to present evidence of Porter’s “abusive childhood”
and “horrible family life,” including an incident in which “Porter’s father shot at him for
coming home late, but missed and just beat Porter instead,” and another in which
Porter’s mother was beaten “so severely that she had to go to the hospital and lost a
child.” Most recently in Sears, 130 S. Ct. at 3262, the Court found prejudicial counsel’s
Nos. 08-3522/3575 Sowell v. Anderson Page 18

failure to present evidence that Sears’ home life was “physically abusive” and that he
“suffered sexual abuse at the hands of an adolescent male cousin.”

A finding that Sowell was prejudiced by his attorneys’ failure to develop and
present exactly this kind of mitigating evidence is therefore squarely in line with the
Supreme Court decisions addressing ineffective assistance during the penalty phase of
a capital trial. Our court has also repeatedly found that ignorance of specifics about a
defendant’s formative years undermines confidence in the outcome of a capital
sentencing proceeding. Most recently in Goodwin, 632 F.3d at 329, we deemed
prejudicial counsel’s failure to present evidence that Goodwin suffered “severe privation
and abuse in the early years of his life and while in the custody of his alcoholic and drug
using mother,” including evidence that he was “frequently beaten, sexually molested,
and abandoned by both of his parents.” Likewise in Mason v. Mitchell, 543 F.3d 766,
780 (6th Cir. 2008), this court held that the petitioner was prejudiced where counsel did
not present evidence of Mason’s “abusive and unhealthy” childhood, including evidence
that his parents were “daily drug users as well as traffickers,” that his mother “shot at his
father because of his involvement with prostitution,” and that Mason’s parents “regularly
abused Mason and isolated all of their children from anyone not associated with the
parents’ drug dealing activities.” And in Harries, 417 F.3d at 639, we upheld the district
court’s finding of prejudice where counsel failed to discover evidence that Harries
suffered “significant physical abuse” during his “traumatic” childhood, including an
incident in which he was “hit . . . on the head with a frying pan,” and another in which
he was “choked so severely that his eyes hemorrhaged.”

In short, like the additional mitigating evidence presented in these cases,
evidence of Sowell’s severely impoverished and abusive childhood is not merely
cumulative of that presented at sentencing. This is also not a case in which the omitted
evidence “would have triggered admission of . . . powerful [aggravating] evidence in
rebuttal.” Wong v. Belmontes, 130 S. Ct. 383, 387-88 (2009) (per curiam). In
Belmontes, defense counsel “built his mitigation strategy around the overriding need to
exclude” evidence that Belmontes had committed a prior murder. Id. at 385. The
Nos. 08-3522/3575 Sowell v. Anderson Page 19

Supreme Court held that counsel’s decision not to use expert testimony to “humanize”
Belmontes was not prejudicial, because the expert testimony would have opened the
door to evidence of the prior murder kept out only by counsel’s vigilance. Id. at 388; see
also Wood, 130 S. Ct. at 850 n.3. Here, the panel already knew the most damaging
information about Sowell’s background from the PSI and psychological reports, and
additional mitigating evidence could only have tipped the balance in favor of leniency.

We recognize that the prejudice question in this case is close, and that the Ohio
courts had a different view of the impact defense counsel’s performance had on Sowell’s
sentencing proceeding. However, under the pre-AEDPA standard that applies to this
case, the federal courts must make their “own independent determination of [Sowell’s]
federal claim,” and are not bound by the state courts’ view. Wainwright, 433 U.S. at 87.
For these reasons, the district court properly found that there is a reasonable probability
that a three-judge panel presented with evidence of Sowell’s extensive abuse and neglect
would have returned a different sentence.

Accordingly, Sowell is entitled to relief on his claim that trial counsel provided
ineffective assistance during the penalty phase of his capital trial. Because counsel’s
failure to investigate compelling mitigating evidence constitutes ineffective assistance
warranting resentencing, it is not necessary to address the other sentencing issues raised
in the habeas petition concerning the imposition of the death penalty, including whether
counsel’s failure to obtain “reasonable and necessary” experts constitutes ineffective
assistance, whether the three-judge panel erred in applying the wrong weighing standard
during sentencing, and whether the presiding judge’s ex parte communication with the
probation department rendered the death sentence constitutionally infirm.1 We now turn
to issues raised by Sowell concerning the guilt phase of his trial.

1
To the extent that this claim can be read as a challenge not only to Sowell’s sentence but also
to his conviction, we reject it for the reasons given by the district court. Sowell, 557 F.3d at 893-97.
Nos. 08-3522/3575 Sowell v. Anderson Page 20

III.

A. Prosecution’s Suppression of Exculpatory Evidence

Sowell claims that the prosecution failed to disclose material exculpatory
evidence, as required by Brady v. Maryland, 373 U.S. 83 (1963). This claim is without
merit for the reasons given by the district court. Sowell, 557 F. Supp. 2d at 907-09.
Sowell argues that prosecutors suppressed the statement of Jerrell Perrin, an eyewitness
who lived on the same floor of the apartment building as Sowell and Graham. But
Perrin’s statement is not material and does not create sufficient doubt as to Sowell’s
guilt.

In her affidavit filed in the post-conviction proceeding, Perrin testified that on
the night of the shooting, she saw Sowell standing outside Graham’s apartment and
heard him ask Pamela Billups to return his money, and that she heard Billups respond
by screaming profanities at Sowell. She testified that between twenty and thirty minutes
later, she heard what she thought was a car backfiring. When she opened her door, she
saw Sowell walking back to his apartment. Perrin testified that she knew Billups was
a prostitute and had a reputation for dishonesty, and that Billups was known for stealing
money from her customers.

As the district court explained:

Perrin’s affidavit actually contradicts petitioner’s trial testimony, and the
defense theory of the case, in several key respects. Petitioner testified
that he did not argue with Billups about his money, yet Perrin’s statement
quite clearly states that she heard petitioner and Billups arguing. More
importantly, Perrin’s affidavit states that she heard the sounds of gunfire
twenty to thirty minutes after the argument. This statement directly
contradicts petitioner’s testimony that the shooting happened “far less
than five minutes” after he left the apartment, and calls into question the
defense theory that this offense was committed without sufficient time
to form the intent necessary for prior calculation and design.

Sowell, 557 F. Supp. 2d at 908-09. There is therefore not a “reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
Nos. 08-3522/3575 Sowell v. Anderson Page 21

been different,” Strickler v. Greene, 527 U.S. 263, 280 (1999), and Sowell’s Brady claim
therefore fails.

B. Sufficiency of the Evidence of Aggravated Murder

Sowell next argues that there was insufficient evidence to support his conviction.
He is wrong. Sowell was convicted of aggravated murder, which requires a finding of
prior calculation and design. See O.R.C. § 2903.03(A)(1). We adopt the careful
reasoning of the district court to the effect that the evidence presented at trial was
sufficient to prove beyond a reasonable doubt that Sowell acted with prior calculation
and design. Most pointedly, the district court explained that:

[T]he shootings did not occur as a result of an instantaneous eruption or
one continuous course of events. There was an initial encounter and an
exchange of hostile words between petitioner and Billups that generated
a decision on petitioner’s part to shoot and kill Billups. After arguing
with Billups about whether she had taken his money, petitioner
announced his intention to get his gun and kill Billups, and he put into
action a plan to achieve that result. To that end, petitioner left Graham’s
apartment, went down the hall to his own apartment, and retrieved his
gun. Although the period of time that elapsed between the initial
encounter and the shootings was brief, there was a break in the
encounter, or an intervening period, during which there was a time for
reflection and planning. During that time, petitioner retrieved his
weapon from a different location and devised a plan to regain entry to
Graham’s apartment under false pretenses by using Lenora Waugh.
Accordingly, . . . there was sufficient time, under all of the
circumstances, for petitioner to plan the killing.

Sowell, 557 F. Supp. 2d at 917.

C. Ineffective Assistance of Counsel During the Guilt Phase

Finally, Sowell asserts that he received ineffective assistance of counsel during
the guilt phase of his trial for four reasons. First, Sowell argues that counsel failed to
conduct a reasonable pretrial investigation by not interviewing the state’s witnesses.
Second, Sowell argues that counsel failed to call Sowell’s neighbor, Jarrell Perrin, as a
defense witness. Third, Sowell argues that counsel failed to cross-examine Donna
Edwards, a key prosecution witness and eyewitness to the shootings. And fourth, Sowell
Nos. 08-3522/3575 Sowell v. Anderson Page 22

claims that counsel failed to object to inadmissible evidence concerning Sowell’s
children, a false ceiling in his apartment, and his prior contacts with law enforcement.
With respect to each of these arguments, counsel’s performance was not deficient, or if
it was, Sowell has not shown that the deficiency affected the outcome of his trial.

1. Counsel’s failure to conduct a reasonable investigation

Sowell first argues that his attorneys did not conduct a sufficient pretrial
investigation because they failed to interview the state’s witnesses. Again, we adopt the
reasoning of the district court, which carefully disposed of this argument, relying in part
on the fact that:

[T]he record reflects that counsel filed for discovery and for a more
definite bill of particulars, met with petitioner to discuss his options with
respect to the trier of fact, and reviewed the grand jury testimony of at
least four witnesses. During a pre-trial hearing, petitioner’s counsel
stated on the record that they had met with the prosecutor and reviewed
the evidence and photographs. Counsel filed several pre-trial motions,
including a motion to suppress the gun found in petitioner’s apartment.
Moreover, as the trial court noted, petitioner failed to present any
evidence during his post-conviction proceedings suggesting that his
counsel did not have copies of the witness statements to police.

Sowell, 557 F. Supp. 2d at 883 (citations omitted).

Sowell cites the Seventh Circuit’s holding in Stanley v. Bartley, 465 F.3d 810,
813 (7th Cir. 2006), for the proposition that these activities were not enough. But unlike
the defendant in Stanley, Sowell was not prejudiced by his attorneys’ failure to interview
the state’s witnesses because he has shown no real way in which their testimony would
indicate his innocence. In Stanley, the state’s key witness, James Dean, who might well
have been the murderer, testified that he was with Stanley on the night of the murder and
that he saw Stanley shoot the victim in the back. Id. at 811. But other witnesses—who
did not testify and whom defense counsel did not interview—told the police that Dean
and the victim had been involved in a violent quarrel hours before the shooting. Id. at
812. Here, Sowell admitted shooting Graham and Billups, and the only issue to be
decided by the panel was whether Sowell had committed the acts with prior calculation
Nos. 08-3522/3575 Sowell v. Anderson Page 23

and design. Sowell has presented no evidence that would undermine confidence in the
panel’s finding of prior calculation and design. Thus, no prejudice has been shown from
counsel’s performance in this regard.

2. Counsel’s failure to call Jerrell Perrin

Sowell next argues that counsel failed to call Sowell’s neighbor Perrin as a
defense witness. The district court rejected this argument for the same reason it found
that Perrin’s statement was not material exculpatory evidence—i.e., “the Perrin affidavit
supports, in many respects, the state’s theory of the case, and contradicts petitioner’s
account of the events.” Sowell, 557 F. Supp. 2d at 884. The court therefore properly
concluded that “the testimony of Perrin . . . would not have affected the outcome of
petitioner’s trial.” Id. at 885.

3. Counsel’s failure to cross-examine Donna Edwards

The district court’s opinion also properly disposes of Sowell’s argument that trial
counsel performed deficiently by failing to cross-examine Donna Edwards, a key
prosecution witness and eyewitness to the shooting. Sowell maintains that the testimony
of Edwards—the only individual present in the apartment who was not shot by
Sowell—was inconsistent in several respects with Billups’s testimony, and that counsel
should have brought out these inconsistencies on cross-examination. But once again,
Sowell has not established that he was prejudiced by counsel’s failure to do this.

With respect to counsel’s performance, the district court explained:

Although Edwards was a witness to the actual shooting, she had little to
offer regarding petitioner’s interaction with Billups in the days
immediately preceding the shooting. Billups, on the other hand, was
subject to lengthy cross-examination by counsel, as counsel attempted to
establish that the shootings “were prefaced by a heated, passionate, and
emotional exchange between Mr. Sowell and Ms. Billups.” Petitioner’s
case was not won or lost by whether counsel could exonerate him as the
shooter; rather, counsel’s theory of the case was that petitioner did not
act with prior calculation and design, and “[t]he disputed issue centered
on what precipitated the shooting.” To that end, counsel delivered an
opening statement setting forth a cohesive defense, cross-examined
Nos. 08-3522/3575 Sowell v. Anderson Page 24

Billups regarding the alleged theft that was at the center of the dispute,
and called petitioner to testify regarding the events in question, his
relationship with Billups in the days leading up to the shooting, and his
mental state at the time of the offense.

Sowell, 557 F. Supp. 2d at 886-87 (citations omitted).

The district court also properly reasoned that there was no prejudice in this
regard:

Even if counsel would have highlighted the inconsistencies between
Edwards’ testimony and that of Billups, those inconsistencies concerned
somewhat collateral matters. What remains consistent with respect to the
testimony of the two women is that petitioner threatened to shoot Billups,
left the apartment to retrieve a gun from his own apartment down the
hall, enlisted the assistance of Lenora Waugh to regain entry into the
apartment, entered the apartment with force, shot Graham
twice—including a fatal close range shot to his head, then went to where
Billups was hiding in a closet and fired three shots into her body at close
range, stopping only when he ran out of ammunition. With respect to
these essential facts, the testimony of Edwards and Billups was
consistent, and petitioner cannot meet the prejudice prong of Strickland.

Id. at 887.

4. Counsel’s failure to object to inadmissible evidence

Finally, Sowell argues that trial counsel’s performance was deficient because
counsel failed to object to inadmissible evidence. Sowell claims that counsel failed to
object to questions by the prosecutor during Sowell’s cross-examination concerning
whether he conceived children out of wedlock, whether he had a false ceiling in his
apartment, and whether he had prior contacts with the Cincinnati Police Department.
The district court properly held that these claims were procedurally defaulted because
they were never presented to the state courts. Sowell, 557 F. Supp. 2d at 888. The state
maintains that position on appeal, and Sowell does not respond to the procedural default
argument.
Nos. 08-3522/3575 Sowell v. Anderson Page 25

IV.

For these reasons, the judgment of the district court is affirmed.
Nos. 08-3522/3575 Sowell v. Anderson Page 26

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________

ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in
part. I agree that the district court did not err in denying habeas relief on nearly all of
Sowell’s claims. However, I must respectfully dissent from the portion of the majority
opinion affirming the grant of habeas relief on the basis of ineffective assistance of
counsel at the penalty phase. On the record before us, we cannot say either that counsel
failed to investigate sufficiently, or that counsel pursued a constitutionally deficient
mitigation strategy. Sowell has presented fourteen affidavits of family and friends,
setting forth testimony about his childhood, his family dynamics, his work history, and
his adult life. However, only one of those affidavits—that of Sowell’s father—is of any
help to Sowell’s case, and even then, only marginally so.

Sowell’s argument is that counsel did not adequately investigate and therefore
could not have made a strategic decision to omit certain mitigating evidence at the
sentencing phase. In these types of cases, it is obviously not enough to merely present
an affidavit containing testimony that was not introduced during the penalty phase. The
testimony must also be useful. See Brooks v. Bagley, 513 F.3d 618, 630 (6th Cir. 2008)
(rejecting probative value of affidavit that did not specify what new information
witnesses would have provided); Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir. 2002)
(finding no prejudice where “affidavits of [petitioner’s] family members state their
willingness to testify at his sentencing but do not show what mitigating evidence would
have been presented had they testified”); see also Hill v. Mitchell, 400 F.3d 308, 319
(6th Cir. 2005) (“[T]he 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.”). The affidavit must state that the affiant would have been willing to
testify, because otherwise the trial court would never hear the relevant testimony. See
Turner v. Romanowski, No. 07-2352, 2011 WL 383014, at *6 (6th Cir. Feb. 8, 2011)
(“Turner has not produced an affidavit from Ms. Matthews herself indicating that she
Nos. 08-3522/3575 Sowell v. Anderson Page 27

would be willing to testify on Turner’s behalf . . . .”); Coe v. Bell, 161 F.3d 320, 342 (6th
Cir. 1998) (rejecting ineffective assistance claim where “most . . . witnesses were
unavailable or would not cooperate with counsel at the time of pre-trial preparation”).
And to show that counsel conducted an inadequate investigation, the affidavit must at
least state that counsel never spoke with the affiant. Cf. Goodwin v. Johnson, 632 F.3d
301, 324 (6th Cir. 2011) (“The rest of Goodwin’s family—including his mother, his
sister, his neighbor, his friend, and the mother of his child—testified that at no time
during the trial did attorneys or investigators try to contact them or ask them to testify
on Goodwin’s behalf.”); Morales v. Mitchell, 507 F.3d 916, 932 (6th Cir. 2007) (affiants
stated that they would have been willing to testify but counsel never contacted them).
Without the affiant’s stating that he had not been contacted by counsel, we have no way
of knowing if the absence of the testimony was the product of an informed strategic
decision by counsel or the result of deficient performance.

The majority opinion glosses over the characteristics of each individual affidavit,
describing them collectively with broad, summary language: “Affidavits of fourteen
family members and friends accompanied Sowell’s state post-conviction petition,
recounting the violence and privation of Sowell’s childhood. Many of these witnesses
stated that they would have been available and willing to testify at the penalty phase but
had not been asked to do so.” In fact, only eight of the affidavits have anything to say
about Sowell’s childhood. Of those, only one offers any helpful testimony and states
that counsel never contacted the affiant.

In order to avoid the majority’s error, I will examine the affidavits individually,
not as an indistinguishable mass of potential mitigation testimony. Sowell submitted
several affidavits from immediate family members: Henderson Sowell, Sr. (father);
Henderson Sowell, Jr. (brother); Larry Sowell (brother); and Catherine Jones (sister).
He submitted affidavits from his wife and other family members: Lenora Waugh
(common law wife); Bobby Lee Horton (great uncle); Helen Sanderful (aunt); Ann
Simpson (aunt). He submitted an affidavit from a childhood friend: Kenneth Starks.
Lastly, he submitted affidavits from friends and acquaintances from his adult life: Adam
Nos. 08-3522/3575 Sowell v. Anderson Page 28

Huntley (employer); Leroy Jones (friend); Jerrell Perrin (neighbor); Jimmy Wilcox
(co-worker); and Walter Gabennesh (employer). In all, Sowell submitted fourteen
affidavits’ worth of information that counsel was allegedly ineffective for failing to
discover. However, very little of it goes towards establishing ineffective assistance of
counsel, some of it is not helpful for mitigation, and some of it undercuts his mitigation
case.

The only argument Sowell advances, and the only one that has ever gained
traction in a federal court, is that counsel was ineffective for failing to investigate and
present evidence concerning Sowell’s difficult childhood. Therefore, any testimony
presented in the fourteen affidavits regarding Sowell’s adult life is not relevant to
Sowell’s claim. Sowell never argues to the contrary. Waugh, Huntley, Leroy Jones,
Perrin, Wilcox, and Gabennesh knew Sowell only in his adult life, and their testimony
does not shed light on anything new from his childhood, so those affidavits are not
valuable.1

Of the remaining eight affiants, the only ones to actually state that Sowell’s
attorneys never contacted them are his father, Henderson Sowell, Sr., and his aunt, Ann
Simpson. None of the others state that counsel never spoke with them.2 In light of this,
the majority opinion’s statement that, “[C]ounsel did not interview any of Sowell’s
family members, including his father, brothers, sisters, and other relatives,” is quite an
overstatement.

Because the affidavits of the six other relevant affiants are silent on the matter,
we cannot assume that trial counsel never spoke with them. This is simply a matter of
recognizing where the burden of proof lies—with Sowell, the petitioner. See Strickland
v. Washington, 466 U.S. 668, 687 (1984); Fautenberry v. Mitchell, 515 F.3d 614, 634
(6th Cir. 2008); Higgins v. Renico, 470 F.3d 624, 632 (6th Cir. 2006) (“In essence, a
defendant has the burden of proving, by a preponderance of the evidence, that counsel

1
Furthermore, Waugh actually did testify at the sentencing phase.
2
Even Larry Sowell, petitioner’s brother, states only that he was not asked to testify. He does not
say anything about whether or not counsel ever spoke with him.
Nos. 08-3522/3575 Sowell v. Anderson Page 29

made errors so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment.” (citation and internal quotation marks omitted)).
The silence of the relevant affidavits on whether or not counsel ever spoke to the affiants
cannot lead us to assume away Sowell’s burden of proof. Furthermore, counsel’s
performance is entitled to “a strong presumption that [it] falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Because of this
presumption, the burden of proof is heavy. See Short v. United States, 471 F.3d 686, 692
(6th Cir. 2006) (“[D]efendants alleging ineffective assistance of counsel bear ‘a heavy
burden of proof.’” (quoting Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005))). This
presumption means nothing if we automatically assume that counsel did not speak to
valuable witnesses, absent evidence to the contrary. Indeed, that would be a
presumption that counsel did not perform adequately.

That is especially the case here where we have no testimony, no affidavits, and
no records whatsoever from the witnesses best able to speak on the extent of counsel’s
investigation: trial counsel themselves.3 See Carter v. Mitchell, 443 F.3d 517, 531 (6th
Cir. 2006) (“[C]uriously absent from the record is any statement from trial counsel
describing what he did or did not do in investigating [petitioner’s] background. By not
detailing trial counsel’s efforts to learn of [petitioner’s] background, [petitioner] has
provided no basis for a finding that trial counsel’s investigation was unreasonable.”).
True, that is not always required. See Woodard v. Mitchell, No. 06-4329, 2010 WL
4924449, at *6 (6th Cir. Dec. 2, 2010). But it is “obvious . . . that [trial counsel’s]
testimony, when available, is preferred.” Id. This Court has never held that a petitioner
can establish ineffective assistance by omitting all direct evidence of counsel’s
investigation and presenting affidavits from persons who may or may not have been
contacted by counsel, setting out their potential testimony that counsel may or may not

3
It is also particularly notable that two of these affiants are willing and able to say that they were
never contacted by trial counsel and would have been willing to testify if asked, e.g., Henderson Sowell,
Sr. Aff., some stated only that they would have been willing to testify, e.g., Larry Sowell Aff., and others
say nothing at all on the matter, e.g., Catherine Jones Aff. The most logical interpretation of the affidavits
is that, astoundingly, they each mean what they say and not what they do not say.
Nos. 08-3522/3575 Sowell v. Anderson Page 30

have known. To allow that is to do away with both the presumption that counsel
performed adequately and the petitioner’s burden of proof.

The Court’s holding today provides a roadmap to future habeas petitioners
seeking to show ineffective assistance of counsel due to inadequate mitigation
investigation. First, the petitioner should present no evidence regarding trial counsel’s
investigation. Next, he should submit affidavits from people setting forth any evidence
that counsel did not introduce at trial, regardless of whether or not counsel was aware
of it, regardless of whether or not counsel spoke with the affiants. Lastly, he must make
sure the affiants do not mention whether or not counsel ever spoke to them during the
mitigation investigation, or whether or not they were willing to testify at trial. It is that
easy. Even if counsel did speak with the affiants but chose not to call them as witnesses,
the affiants don’t even have to lie about it—they just have to remain silent on the matter.

I now return to the only two possibly relevant affidavits. Sowell’s aunt, Ann
Simpson, would not have provided useful testimony. She stated in her affidavit that,
“Billy Joe was a happy go lucky youth. He was always clean and liked to dress in nice
clothing.” Also undercutting the image of a chaotic and abusive relationship between
his parents, she stated, “Henderson and his wife, Mary Jane, appeared to get along
okay.”

This leaves Sowell’s father, Henderson Sowell, Sr., as the only relevant person
for whom we have any evidence to say that Sowell’s counsel never contacted him. The
testimony the father presents in his affidavit is relatively unremarkable. Most of it
concerns Henderson, Sr.’s own life and upbringing. It mentions Henderson’s alcohol
use, separation of the family, and the family’s impoverished housing conditions. It does
not contain any of the startling and vivid stories from Sowell’s childhood: an infant
sibling dying of starvation, rats biting the children, the father’s abandonment of the
children, the father’s beating Billy Joe until a neighbor intervened, the father’s sexual
molestation of Catherine, and the father’s threatening to burn Catherine to death. Those
statements are from either Sowell himself (in his post-sentence interview with Dr.
Hawgood) or his siblings. Even given Henderson, Sr.’s statement that, “In 1983, I was
Nos. 08-3522/3575 Sowell v. Anderson Page 31

not contacted by Billy Joe’s attorneys or their assistants,” the testimony he would have
offered to them was of minimal value.

Furthermore, assuming that trial counsel had all of the proffered evidence in front
of him, I cannot say that their decision not to put forth testimony about Sowell’s
childhood was not the product of a strategic decision. I agree with the majority that the
two strategies of emphasizing Sowell’s deprived childhood and emphasizing his good
character in his adult life are not necessarily incompatible. But as the affidavits
submitted by family members make clear, the testimony about his miserable childhood
would also include testimony that could harm Sowell’s mitigation case. Each affidavit
that included evidence about Sowell’s difficult childhood also mentioned his temper and
his violent tendencies. While his difficult childhood would probably paint a more
sympathetic picture of Sowell, it would also paint a picture of a man inclined towards
violence. The mitigation testimony of Sowell’s friends that counsel did present painted
a picture of a kind, generous man, with no mention whatsoever of Sowell’s violent
tendencies. True, the psychological reports mentioned Sowell’s violent tendencies. But
it could certainly have been a strategic decision by counsel to have friends give positive
testimony about Sowell’s character, while reserving any analysis of his violent
tendencies to the expert witnesses. This would emphasize that his violent outburst that
resulted in these crimes, while predictable to the experts in psychology and psychiatry,
was surprising and out of character to those who knew Sowell best. Pursuing an
additional strategy that focused on his difficult upbringing would not be inconsistent, but
in this case it would be at great cost because it would bring to light his violent tendencies
even more.

The majority dismisses this concern by employing a double standard. The
majority minimizes the damaging effect of the testimony about Sowell’s violent
tendencies by assuring itself that the psychological reports available to the court at
sentencing already “thoroughly documented Sowell’s short temper and his propensity
for responding violently to perceived injustices, especially when drinking.” Similarly,
Nos. 08-3522/3575 Sowell v. Anderson Page 32

the psychological reports briefly documented Sowell’s difficult upbringing.4 Of course,
on these matters, the majority states that testimony from family members would be far
more vivid and effective at describing Sowell’s difficult childhood: “These specifics had
far more evidentiary power than the abstractions and oblique references contained in the
experts’ written reports.” Why would specifics about his violent tendencies not also
have “more evidentiary power”? Apparently, the advantage of specific first-hand
testimony over psychological reports only works in Sowell’s favor and never against it.

I dissent from the majority opinion’s affirmance of the district court’s grant of
relief because a careful examination of the evidence before us reveals that Sowell cannot
show either that his counsel undertook an inadequate investigation or that counsel’s
choice of mitigation strategy was unreasonable. The majority can only find grounds for
relief by failing to examine the affidavits individually, presuming them all to be
unequivocally relevant and helpful to Sowell, and presuming that trial counsel did not
perform an adequate investigation. As for Sowell’s other arguments for relief that the
district court rejected and the majority did not need to address—that counsel should have
objected to the presentence investigation report and should have obtained additional
experts, challenging an ex parte communication between a trial judge and the probation
department, and the trial court’s weighing standard at sentencing—I would deny relief
on those claims for substantially the same reasons that the district court did.

4
“He describes his father as having been a strict disciplinarian . . . . The family was very poor
. . . .” (Walters Report.) “Mother had been good in some ways but a distant person and one who could
not be satisfied with her marriage and family and frequently left it . . . .” (Titchner Report.) “[Sowell]
feels that there was a lack of close parental nurturance, thus he felt he had a ‘rough’ childhood . . . . [H]is
early experiences left him feeling abandoned, angry, without significant stable relationships . . . .”
(Schmidtgoessling Report.)