Wood v. Allen

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEM BER 16, 2008
THOMAS K. KAHN
No. 06-16412 CLERK
________________________
D. C. Docket No. 04-00509-CV-WHA

HOLLY WOOD,

Petitioner-Appellee,
Cross-Appellant,

versus

RICHARD F. ALLEN, Commissioner,
Alabama Department of Corrections,
TROY KING, The Attorney General of
the State of Alabama,
Grantt Culliver, Warden,

Respondents-Appellants,
Cross-Appellees.

________________________

Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(September 16, 2008)

Before DUBINA, BARKETT and HULL, Circuit Judges.
HULL, Circuit Judge:

The State of Alabama appeals the district court’s grant of the habeas writ to

Holly Wood, which vacated his death sentence based on counsel’s ineffective

assistance in failing to investigate and offer sufficient mitigation evidence. Wood

cross-appeals the denial of his claims that: (1) he is mentally retarded and

ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.

2242 (2002); and (2) the prosecutor’s peremptory strikes violated Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). After review and oral argument,

we affirm the district court’s denial of Wood’s Atkins and Batson claims and

reverse its decision that Wood’s counsel rendered ineffective assistance.

I. The Crime and Procedural History

A. The Crime

On the night of September 1, 1993, Wood brutally killed Ruby Lois Gosha,

who was Wood’s former girlfriend and the mother of his child. See Wood v. State,

715 So. 2d 812, 813 (Ala. Crim. App. 1996). About two weeks prior to murdering

Ruby, Wood had assaulted Ruby, cutting her and causing her to lose the use of two

fingers. Id. at 814. In addition to the testimony of Ruby’s mother in that regard,

the autopsy showed recent bruises on Ruby’s palm and the back of her left hand,

two recent trauma-induced scars on her right forearm, and recent scars on her left

2
forearm and upper arm. Id.

On the night of the murder, around 5:00 p.m., Ruby’s mother told Wood to

leave her home (where Ruby lived) and not come back. Id. at 813-14. Wood

returned to Ruby’s mother’s house around 9:00 p.m., snuck into Ruby’s bedroom

with his 12-gauge shotgun, and shot Ruby in the head and face, fracturing her skull

and injuring her brain. Id. at 814. There was a gunshot wound near her eye and

one near her cheek. Id. Ruby was dead by the time the ambulance got her to the

hospital. Id.

After shooting Ruby, Wood that night told his cousin, Calvin Salter, “I shot

that bitch in the head, and [blew] her brains out and all she did was wiggle.” Id. at

815 (alteration in original). Wood also told Salter that he had attempted to stab

Ruby in the heart sometime prior to the shooting, but Ruby had thrown her arm up

to protect herself, and he had stabbed her in the arm instead. Id. Thus, although

Ruby had tried to escape Wood’s domestic violence and although her mother had

tried to keep Wood away from her home, Wood managed to sneak into the home

late at night and kill Ruby at point-blank range in her own bed.

At the time Wood killed Ruby, he was already on parole for a prior violent

felony shooting of another former girlfriend. See id. at 819. In short, Ruby was

not Wood’s first domestic violence shooting victim, and the State sought the death

3
penalty for Ruby’s murder.

B. Procedural History

On October 20, 1994, the jury unanimously convicted Wood of capital

murder during a first-degree burglary. The jury recommended a death sentence by

a 10-2 vote. After a pre-sentencing report and a separate sentencing hearing, the

trial judge sentenced Wood to death. On direct appeal, the Alabama Court of

Criminal Appeals (“Alabama Appeals Court”) rejected Wood’s Batson claim and

affirmed his conviction and death sentence. See Wood v. State, 715 So. 2d at 817,

819. The Alabama Supreme Court also affirmed Wood’s conviction and sentence.

Ex parte Wood, 715 So. 2d 819 (Ala. 1998).

After the United States Supreme Court denied Wood certiorari, Wood v.

Alabama, 525 U.S. 1042, 119 S. Ct. 594 (1998), Wood filed a petition for post-

conviction relief under Alabama Rule of Criminal Procedure 32.1 Wood’s Rule 32

petition claimed that (1) he is mentally retarded and not eligible for a death

sentence, and (2) his trial counsel were ineffective by failing to investigate and

present evidence of his mental deficiencies during the penalty phase. After two

evidentiary hearings, the Rule 32 court denied Wood’s Rule 32 petition in two

separate orders.

1
Wood filed a pro se Rule 32 petition in 1999, a counseled amended Rule 32 petition in
2000, and a counseled second amended Rule 32 petition in 2001.

4
 After these Rule 32 orders, the United States Supreme Court decided Atkins,

and the Alabama Appeals Court remanded Wood’s Rule 32 case in light of Atkins.

Wood v. State, 891 So. 2d 398, 402 (Ala. Crim. App. 2003). On remand, the Rule

32 court conducted an extensive evidentiary hearing and issued a third Rule 32

order thoroughly discussing Wood’s claims and denying them. The Rule 32 court

found that Wood was not mentally retarded and his counsel were not ineffective.

The Alabama Appeals Court adopted and affirmed the Rule 32 court’s findings and

denial of Wood’s claims. See Wood v. State, 891 So. 2d 398, 413 (Ala. Crim.

App. 2004). The Alabama Supreme Court denied certiorari. Ex parte Wood, No.

1030817 (Ala. May 21, 2004).

Wood then filed his 28 U.S.C. § 2254 petition. The district court denied

Wood’s Atkins and Batson claims, but granted relief on Wood’s claim that his

counsel were ineffective in the penalty phase by failing to investigate and present

evidence of his deficient “intellectual functioning.” Wood v. Allen, 465 F. Supp.

2d 1211, 1228-29, 1232, 1245 (M.D. Ala. 2006). This appeal followed.

II. Standard of Review

We review the district court’s grant or denial of habeas relief de novo. See

Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007); McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005); Sims v. Singletary, 155 F.3d

5
1297, 1304 (11th Cir. 1998). However, under § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of

a final state court habeas decision is “greatly circumscribed and is highly

deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.

2002).

Section 2254(d) permits federal habeas relief only where the state courts’

decisions were (1) “contrary to, or involved an unreasonable application of, clearly

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

or (2) “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Stewart, 476

F.3d at 1208.2 “[A] determination of a factual issue made by a State court shall be

presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Henyard v. McDonough, 459 F.3d 1217, 1240 (11th Cir. 2006), cert.

denied, __ U.S. __, 127 S. Ct. 1818 (2007); Marquard v. Sec’y for the Dep’t of

Corr., 429 F.3d 1278, 1303 (11th Cir. 2005). Thus, “[o]ur review of findings of

fact by the state court is even more deferential than under a clearly erroneous

2
“The phrase ‘clearly established Federal law,’ as used in § 2254(d)(1), encompasses
only the holdings, as opposed to the dicta, of the United States Supreme Court as of the time of
the relevant state court decision.” Stewart, 476 F.3d at 1208-09.

6
standard of review.” Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).

With these highly deferential standards in mind, we turn to Wood’s Atkins,

Batson, and ineffective assistance claims, in that order.

III. Atkins

We agree with the district court that the Alabama courts’ rejection of

Wood’s mental retardation claim was not contrary to, or an unreasonable

application of, Atkins, or based on an unreasonable determination of the facts.

The Supreme Court in Atkins held that the Eighth Amendment prohibits the

execution of mentally retarded persons. Atkins, 536 U.S. at 321, 122 S. Ct. at

2252. The Supreme Court left “‘to the States the task of developing appropriate

ways to enforce the [Atkins] constitutional restriction.’” Id. at 317, 122 S. Ct. at

2250 (brackets and citation omitted). As the Rule 32 court recognized, Alabama

law provides that a defendant making an Atkins claim must establish three

elements to show mental retardation: (1) significantly subaverage intellectual

functioning (defined as an Intelligence Quotient (“IQ”) of 70 or lower); (2)

significant or substantial deficits in adaptive behavior; and (3) that both of the first

two problems manifested themselves during the defendant’s “developmental

period” (before the defendant reached the age of eighteen). See Smith v. State, __

So. 2d __, 2007 Ala. LEXIS 91, at *19-21 (Ala. May 25, 2007); Ex parte Perkins,

7
851 So. 2d 453, 456 (Ala. 2002).

After three evidentiary hearings, the Rule 32 court applied this standard and

found Wood is not mentally retarded because he does not have significant or

substantial deficits in his adaptive functioning but instead has a high level of

adaptive functioning.3 The Rule 32 court found Wood: (1) was able to obtain and

maintain employment and had worked at several jobs for a lengthy amount of time,

such as driving a forklift, driving motor vehicles, working in a factory, and

operating heavy machinery and equipment in a dangerous work environment; (2)

was able to function well independently and did not need the assistance of others to

complete daily tasks; (3) managed his own money and always had money; (4) did

not have problems communicating or getting his needs met verbally or through

written language; (5) was able to plan and cook meals for himself and others; (6)

could identify and resolve typical problems that might arise in everyday life (such

as checking the fuse box if the lights went out in his house); (7) was always neat

and clean in his appearance; (8) often drove himself out-of-state to visit relatives

and for other reasons, and in fact was an automobile enthusiast who subscribed to

Hot Rod magazine; (9) could form and maintain interpersonal relationships with

3
Although the Rule 32 court concluded Wood “probably” met the first element of the
test—subaverage intellectual functioning—the Rule 32 court determined it did not need to reach
that issue because the second element of the test—significant or substantial deficits in adaptive
functioning—was not present.

8
others and had a girlfriend, Barbara Siler, for three years; and (10) devised and

implemented a scheme to lure Siler out of her house to shoot her after she ended

their relationship.

In finding that Wood has a high level of adaptive functioning, the Rule 32

court credited testimony from psychologists Dr. Harry McClaren and Dr. Gregory

Prichard; Siler; Wood’s former teachers; and Wood’s former boss, Melvin Wright.

Drs. McClaren and Prichard evaluated Wood together and concluded Wood was

not mentally retarded because, while his full-scale IQ was 64 and his true IQ was

between 61 and 69, Wood did not have significant or substantial deficits in his

adaptive functioning. They administered the “Vineland” test for adaptive

functioning and the Scales of Independent Behavior Revised Edition (“SIBR”).

They interviewed Wood’s “[t]eachers, boss, correctional officers, a man that had

known his family, [and] sisters.”4

Dr. McClaren testified that: (1) Wood “has been able to obtain and maintain

a variety of jobs involving driving motor vehicles, working in a factory, [and]

working heavy equipment,” including a forklift and a front-end loader; (2) Wood

worked in the kitchen while in prison; (3) Wood’s heavy machinery jobs “required

4
Dr. Prichard administered the SIBR to Wood and testified “Wood was assessing himself
pretty high in terms of adaptive capacity.” Dr. Prichard administered Vineland tests to Siler,
Wood’s former teachers Janet Penn and Hilda Maddox, sisters Johnnie and Maeola Wood, and
correctional officers.

9
a degree of skill that is not typically associated with people who . . . are mentally

retarded” and he could not “think of another mentally retarded person [he]

examined that did that kind of work”; (4) Wood was able to explain in detail how

to prepare a meal for a large number of people; (5) Wood had numerous cars in his

life and paid cash for most of them; (6) Wood liked hot rodding and subscribed to

Hot Rod magazine; (7) Wood knew to go to the fuse box if a light went out in his

house; (8) Wood once borrowed money from a bank to buy a car but quickly

repaid the loan so he could do things for the family; and (9) Wood was a sharp

dresser and a “neat freak.” Dr. Prichard’s “bottom line finding” was that Wood’s

“adaptive skills are not impaired in the mentally retarded range.” Dr. Prichard

added that Wood’s skills were “sufficient for independent functioning.” Dr.

Prichard agreed with Dr. McClaren’s findings.

Four teachers testified about Wood’s IQ and special education classes, and

their testimony was consistent with that of the Rule 32 psychologists. Janet

Penn—Wood’s special education teacher—taught Wood for two or three years

during junior high. Penn could have no more than fifteen students at a time, and

usually she had twelve. Penn’s special education students had an IQ range of 60-

80, and Wood was a “pretty average” student who never failed. Penn did not recall

Wood getting into trouble frequently, but as neat, clean, and on-time, albeit lazy,

10
sleepy, and a little moody. Penn thought Wood was probably classified as

educable mentally retarded, which meant he was more productive than the students

classified as trainable mentally retarded.5

Hilda Maddox—another special education teacher—testified the range of

IQs for special education students was “low 50s to . . . . [maybe] 80.” According

to Maddox, Wood was in the middle range of the educable mentally retarded group

of students, had an IQ in the low to mid 60s, and got C-range grades. Wood never

failed and attended class on a regular basis, although he was quiet and did not

always put forth maximum effort. Maddox confirmed Wood was very clean and

had a very neat appearance.

Alfreida Griffen attended Luverne High School with Wood and is now its

principal. The special education students were called “moles.” The special

education classroom was in the basement and called the “mole hole.” Douglas

Brown taught Wood in junior high physical education and found him to be a

typical junior high school kid. Brown testified that “Holly B,” Wood’s nickname,

5
Our colleague’s separate opinion states that “Penn would have testified also that all of
the special education students, regardless of age or grade level, were placed in one room in a
basement.” Judge Barkett Opinion, at 93. However, Penn did not testify that all special
education students were placed in the same class regardless of age or grade level or that there
was only one classroom in the basement. To the contrary, Penn apparently taught Wood in
seventh, eighth, and ninth grade, and she testified that she could have no more than fifteen
students at a time and usually had about twelve. Moreover, Penn testified that other special
education teachers existed to teach older students, and Wood later had one of those teachers
(Maddox).

11
was used as an insult.6

Wright—Wood’s former boss at Sanders Lead Company—testified Wood

was an average person who did not appear unusual and seemed to be like most

other employees. Wood could follow instructions and did the work assigned to

him; cooperated in a civil manner with his fellow employees; had no discipline

problems; and was on-time, hard-working, and dependable. Once someone in

Wood’s position learned to do the work assigned, it was not complicated, but for a

beginner, it was complicated work. The work environment was hazardous, and

Wood could have been seriously injured if he was not alert and paying attention to

detail.

Siler—Wood’s former girlfriend—testified about their relationship. Siler

dated Wood from 1981 to 1984. When they dated long distance for some of that

time, Wood drove to see Siler over “most weekends” and “sometimes through the

week.” Wood was nice to Siler at the beginning; had a nice appearance; cared a lot

about how he dressed, his hair, and his clothes; and did laundry frequently. When

Siler met Wood, he drove a delivery truck and had worked for a funeral home and

Sanders Lead Company. Wood always seemed to have money. He had three

6
Brown also testified Wood was somewhat disheveled and occasionally had a bad, urine-
like smell about him. However, Brown’s testimony about Wood’s physical appearance was
contradicted by multiple witnesses who said Wood was very neat and clean. Penn and Maddox
recalled no bad smells.

12
different cars during their relationship, liked his cars, and kept them well-detailed.

When Wood visited Siler, they stayed at a motel and he would go inside and get

the room. Nothing ever struck Siler as “slow or off” about Wood. Wood seemed

like an average man, and, in fact, was “pretty capable.”

Siler and Wood talked about the possibility of getting married, but Wood

became abusive, and their relationship deteriorated. The sheriff came to Siler’s

mother’s house because Siler and Wood were having an argument. The argument

and the sheriff’s visit upset Siler’s mother, and Siler ended the relationship. This

upset Wood, and he wanted to talk to Siler, but she did not want to talk to him.

Wood then sent his friend to the door of her mother’s house “to tell [her] to come

outside” because Siler’s mother would not have let Wood in. When Wood’s friend

told Siler to come outside to talk to Wood, Siler told him no, and she stayed inside

and sat down on the couch. A few minutes later, Wood shot Siler through the

window and fled. The Rule 32 court found Wood’s ruse to shoot Siler “exhibited

regrettable adaptability” on Wood’s part.

Based on this wealth of evidence, the Alabama courts found Wood was not

mentally retarded. Wood has not shown the Alabama courts’ rejection of his

mental retardation claim was contrary to, or an unreasonable application of, Atkins,

13
or based on an unreasonable determination of the facts.7

IV. Batson

The district court also properly determined the Alabama courts’ denial of

Wood’s Batson claim was not an unreasonable application of clearly established

federal law or predicated upon unreasonable findings of fact. The district court

determined that although Wood raised a Batson claim in the state courts, he did not

make any sub-argument comparing black venire members who were struck with

white members who were not struck. We agree with the district court and affirm

its decision pursuant to Hightower v. Terry, 459 F.3d 1067 (11th Cir. 2006), cert.

denied, __ U.S. __, 127 S. Ct. 2254 (2007), and Atwater v. Crosby, 451 F.3d 799

(11th Cir. 2006), without additional discussion.

V. Ineffective Assistance Claims

The trial court appointed three attorneys for Wood: Cary Dozier and Frank

Ralph, experienced trial attorneys, and Kenneth Trotter, a new attorney who shared

office space with Dozier. Wood claims his counsel were ineffective in the penalty

phase because they: (1) did not present to the jury evidence of Wood’s borderline

intellectual functioning and special education classes; and (2) failed to adequately

7
The Rule 32 court did not credit the testimony of Dr. Karen Salekin. Wood has not
claimed (and could not show in any event) any error in the Rule 32 court’s exclusion of Dr.
Salekin’s testimony, and thus we do not discuss it.

14
investigate those issues before deciding against presenting mental health evidence.

To evaluate Wood’s ineffective assistance claims, we review: (1) what each

counsel said about their investigation, preparation, and trial decisions; (2) what

mitigation evidence counsel discovered and presented to the jury and later to the

sentencing judge; (3) the Rule 32 mitigation evidence that Wood argues his

counsel should have investigated and presented; and (4) the fact findings and legal

conclusions in the Rule 32 orders.

A. Dozier’s testimony and Dr. Kirkland’s report

Dozier had practiced for more than twenty years, represented capital

defendants before, tried over a thousand felony cases, and had extensive criminal

experience. Dozier had worked in the Alabama Attorney General’s Office, for a

judge on the Alabama Court of Criminal Appeals, for a private law firm, and as the

Chief Deputy District Attorney in Montgomery County. Dozier was Wood’s lead

counsel, and, as detailed below, Dozier and Ralph were responsible for and

involved in investigating all phases of the trial, including the sentencing and guilt

phases.

Dozier testified Wood was always nice and cooperative and gave the trial

team information about the case that it followed up on. Dozier used an

experienced investigator, Pete Taylor, and was “sure” that Taylor met with Wood

15
and “members of [Wood’s] family and other people.” Dozier used Taylor to “look

into discovering mitigating evidence,” and was “sure” the trial team interviewed

“potential witnesses about childhood problems that Mr. Wood may have had.”

Although Dozier did not recall to which of Wood’s family members he personally

spoke, Dozier was “sure” he spoke to Wood’s father and that the trial team “talked

to several witnesses.”

Investigator Taylor confirmed that all of his instructions on the Wood case

came from Dozier and all of his meetings were with Dozier. Taylor had thirty

years of police experience. He met with Wood for three hours and interviewed,

inter alios, Wood’s sisters Johnnie Wood and Susan Wood Caldwell, and his

father, J.P. Wood.8

Dozier obtained and reviewed a psychological evaluation of Wood as

possible mitigation evidence. Dozier moved the state trial court to have Wood

examined by a psychologist. Dozier explained that when they sought to have

Wood evaluated by a psychologist, they did so “for both competency and mental

state at the time of the offense,” as well as to “discover or get a lead on some

possible mitigation evidence.” (Emphasis added.) Thus, Dozier sought a

psychological evaluation for use in both the guilt/innocence and penalty phases.

8
This testimony from Taylor and Dozier contradicts Wood’s assertion that Taylor and
Dozier failed to interview any family members for mitigation purposes.

16
Dr. Karl Kirkland, Ph.D., examined Wood and reviewed various documents. Dr.

Kirkland evaluated Wood’s intellectual functioning, as well as his emotional and

mental health.

Dr. Kirkland administered the Wide Range Achievement Test-Revised and

Minnesota Multiphasic Personality Inventory tests, and reported that Wood: (1)

was “reading on less than a 3rd grade level”; (2) “could not use abstraction skills

much beyond the low average range of intellect”; and (3) had “an IQ in the

borderline range of intellectual functioning.” Based on the tests and his clinical

interview, Dr. Kirkland reported that Wood was “functioning, at most, in the

borderline range of intellectual functioning.” 9

Wood told Dr. Kirkland he had no history of hospitalization, had never taken

any psychoactive medication, and was not taking any medication at the time of the

evaluation. Dr. Kirkland determined Wood had “problems with impulse control,”

“poor anger control,” and “acting out behavior.” Part of Dr. Kirkland’s diagnosis

was Axis II, Antisocial Acts. Wood reported to Dr. Kirkland that he had “felt

injurious toward others in the past,” and referenced having assaulted a different

9
The dissenting part of our colleague’s separate opinion in this case contends at great
length that if counsel had conducted a more thorough investigation, counsel would have learned
Wood had a low IQ, was reading at a third grade level and could not use abstraction skills much
beyond the low average range of intellect. The fatal flaw in that dissent as to counsel’s
investigation is that counsel did investigate and did know all this months before the trial began.
Wood’s mental deficiencies were clearly outlined in Dr. Kirkland’s May 13, 1994 report before
the October 1994 trial.

17
girlfriend (Siler) by shooting her “through the window of her apartment after

seeing her with another man.” Indeed, Wood was on parole for his felony assault

of Siler when he killed Ruby.

Dr. Kirkland reported that Wood “did not evidence any memory deficits”;

had “a complete memory of his behavior at the time of the alleged offense”; had a

“normal thought process”; and his “thinking was goal directed and logical.” Dr.

Kirkland concluded there was no mental disorder present that would detract from

Wood’s ability to appreciate the criminality of his murder of Ruby. Dr. Kirkland

reported Wood felt he had a good relationship with his attorneys and had been able

to discuss his case in detail with them.

As discussed later, Wood’s counsel did not show Dr. Kirkland’s report to the

jury. The Rule 32 court found: (1) Wood’s counsel decided that calling Dr.

Kirkland was not in Wood’s best interest; and (2) “counsel investigated a potential

mental health defense, but decided against presenting it.” Dozier was responsible

for the decision whether to use Dr. Kirkland’s report. Although Trotter handled

the bulk of the courtroom portion of the penalty phase, Dozier was lead counsel at

all times, and Trotter testified he “relied upon Mr. Dozier’s opinion of [Dr.

Kirkland’s] psychiatry evaluation” and Dozier was the primary contact with Dr.

Kirkland. Trotter testified Dozier and Ralph essentially “made the decisions and

18
told [him] what [he] was going to do.” Dozier testified that had there been any

useful information in Dr. Kirkland’s report, he would have presented it, as follows:

[Q.] Had there been information in [Dr. Kirkland’s] report that you
found useful for Mr. Wood to present, would you have presented it?
....
A. We would have.
Q. Including what was in the report, if you found it useful?
A. If it was useful, we’d have used it.

At the time of Dozier’s Rule 32 testimony in 2000, six years had passed

since the 1994 trial, and Dozier had no files from Wood’s case because they were

destroyed in a fire. Given the passage of time and lack of files, Dozier could not

specifically recall reading Dr. Kirkland’s report, but did testify, “I’m sure we did,”

as follows:

Q. Did [Dr. Kirkland’s] report provide anything for you all?
A. I think it indicated that Holly Wood had some problems at a
younger age or something like that. I just don’t recall all this. But I
think there was some childhood problems, something in the report.
....
Q. Do you recall reading the Kirkland report before the trial?
A. I don’t recall. I’m sure we did, but I don’t recall.

Trotter testified that “Dozier had indicated that he had looked at the report and that

he didn’t think anything in the report really merited . . . going further.” Trotter

emphasized: “And, again, he [Dozier] looked at the report and thought that

wouldn’t be needed.” Dozier testified that he, Ralph, and Trotter had “a lot of

correspondence” with Dr. Kirkland.

19
 As to Wood’s alcohol consumption on the day of the murder, Dozier

recalled the trial team “considered presenting evidence that [Wood] was

intoxicated at the time” and in fact “did bring out some testimony at the sentencing

phase that [Wood] was intoxicated.” The defense in the penalty phase introduced

the arrest report for Ruby’s murder, which indicated Wood had been drinking, and

Trotter argued Wood’s drinking and emotions about Ruby rejecting him were

mitigating factors.

B. Ralph’s testimony

Defense counsel Ralph had practiced law in Alabama for thirty years:

twenty-five in private practice and the other five as an assistant attorney general.

Ralph had handled fifty felony jury cases, and 25% of his practice was criminal

cases. Ralph considered Dozier to be Wood’s lead counsel. The case began before

Ralph became involved, and Dozier had already met with Wood and “made

perhaps some other interviews.”10

While Ralph “didn’t prepare the penalty phase,” he “was in the penalty

phase,” and Ralph clarified that it was not “entirely correct” to say that he had “no

involvement in the preparation for or investigation of the penalty phase.” Ralph

may have talked to Ruby’s mother and Ruby’s mother’s boyfriend and believed he

10
Ralph admitted that if Dozier testified that Dozier participated in the penalty phase
investigation along with Trotter, Ralph could not dispute that.

20
“talked to a sister or two” of Wood’s “or maybe . . . a sister and [Wood’s] father”

prior to the penalty phase, in an effort to gain information for the penalty phase.

Although Ralph never met with Dr. Kirkland, he was “sure” he reviewed Dr.

Kirkland’s report and “remember[ed] seeing it.” Ralph recalled he and counsel

“sat down and went over [Dr. Kirkland’s report] and reviewed it.”

Ralph explained counsel purchased, from an organization called “Capital

Resources,” a large book entitled “Handling Capital Cases in Alabama,” which

contained a great deal of information about “motion practice” and “techniques for

handling various aspects of capital trials.” Ralph testified that while he could not

“say that [he] relied on it entirely . . . it was helpful.”

C. Trotter’s testimony

Trotter was appointed as Wood’s third attorney, to assist Dozier. Admitted

to the Alabama Bar in 1993, Trotter had done “juvenile court work, some criminal

defense, small claims, commercial litigation involving breach of contract issues,

[and] some family law.” Trotter’s “understanding” was that he was appointed to

assist the two senior attorneys who were considerably senior to him in experience.

According to Trotter, Dozier was the principal attorney, and Dozier oversaw “all

phases of the trial, including both . . . the sentencing and the guilt or innocence

adjudication.” Trotter testified that “Dozier made the determination that [Trotter]

21
would assist primarily with the penalty phase—preparation of the penalty phase.”

Although initially Dozier decided “Ralph . . . was to be more primarily responsible

for the penalty phase,” it was decided by either Dozier or Ralph “shortly before the

trial . . . that [Trotter] would represent Mr. Wood during the penalty phase in the

courtroom.” Although Trotter testified he initially “didn’t think that [they] were

actually prepared to move forward with the penalty phase,” Trotter explained that

“after consultation with Mr. Dozier and Mr. Ralph . . . their concerns about that

were alleviated. And at their direction, I went ahead and proceeded.” Ralph

testified that even though Trotter was relatively inexperienced and nervous about

the case, Trotter’s “apprehension was about being in front of a jury. It was not

about his being prepared. I thought that he had done his work.”

Trotter had “two levels of preparation” in representing Wood. First, he was

assisting Dozier and Ralph, and was thereby able to “rely[] on their criminal law

expertise and experience to help . . . them.” Trotter explained that if he had issues

or concerns, he would try to raise those issues or concerns with Dozier and Ralph

“as to why I thought we were or were not prepared for something so they could

give me feedback and guidance on how to proceed from that point.” Trotter “was

able to see issues but relied a lot on [Dozier and Ralph] for guidance as to how to

resolve the issues.” Trotter testified Dozier and Ralph essentially “made the

22
decisions and told [him] what [he] was going to do.”11

Second, Trotter obtained a capital defense book published by either the

Capital Resource Center or the Equal Justice Initiative, as well as various other

resources, to “gain a greater understanding of capital punishment, a greater

understanding of the procedures that lead up to the trial or the hearing, motions that

might be necessary to preserve any appellate rights, things that we might . . . want

to bring out at the trial in either phase.” Trotter, Dozier, and Ralph all had copies

of the capital defense book and a diskette with the types of motions typically filed

in capital cases.

Trotter met with the investigator, Taylor, and reviewed Taylor’s written

reports to Dozier. However, Dozier was the “primary point of contact for Mr.

Taylor, and he was the one that determined what would be investigated.”

Likewise, for motions, Trotter made a contribution, but Dozier was the ultimate

decision maker.12

11
Our colleague’s separate opinion suggests Trotter was not given assistance or
supervised by Dozier and Ralph, but Trotter’s own testimony contradicts that contention.
Further, Dozier and Ralph were both present and active in the penalty phase, as recounted in
Sections D and E, infra.
12
At the time of Wood’s trial, Alabama law provided that an indigent defendant facing
the death penalty was to “be provided with court appointed counsel having no less than five
years’ prior experience in the active practice of criminal law.” Ala. Code § 13A-5-54 (1994).
Both Dozier and Ralph had over twenty years’ experience and met the requirements of § 13A-5-
54. While Trotter was a new attorney, Trotter acknowledged that he was appointed to “assist”
Dozier and Ralph. Alabama courts have made clear that as long as one of a defendant’s
appointed attorneys satisfies the requirements of § 13A-5-54, “the requirements of that section

23
 Trotter spoke to “a lot of [Wood’s] family” in preparing for the penalty

phase. These family meetings were at the courthouse; “there were a number of

occasions” on which Wood was brought to the courthouse and his family was

present also; and “on some of those occasions at some point in time,” Trotter

interviewed the family. Trotter explained that through his interviews—in which

Trotter tried to obtain information about Wood’s “upbringing, his background, his

childhood, what it had been like growing up in [Wood’s] home, characteristics

about [Wood], anything that [might] humanize [Wood] to make him seem more

real to the jury; something that would make him seem more like a human being,

somebody that would be worth saving even if that would mean he would spend his

life in prison”—he identified the witnesses who were used at the penalty phase.

Trotter “tried to get as much information as possible about [Wood’s] background

from the family.”13

In preparing for the penalty phase, Trotter tried to contact people at the

have been satisfied.” Hodges v. State, 856 So. 2d 875, 899 (Ala. Crim. App. 2001); see also
Parker v. State, 587 So. 2d 1072, 1100-01 (Ala. Crim. App. 1991), aff’d, 610 So. 2d 1181 (Ala.
1992). The concurrence’s suggestion that the Alabama law in § 13A-5-54 was not satisfied is
unfounded.
13
Ralph did not think Trotter “brought out enough of Mr. Wood’s background through
enough witnesses of the type of upbringing that he had,” but Ralph could not recall which
witnesses had left certain aspects of Wood’s background “unsaid” and admitted his recollection
was “vague.” Further, three family members did testify in the penalty phase about Wood’s
upbringing, and Ralph never identified what specific additional evidence of Wood’s upbringing
should have been presented.

24
schools Wood attended, including Luverne High School, to obtain “[b]ackground

information about what kind of student he was, what kind of person he’d been at

the school . . . anything that would be able to be used as a mitigating factor.”

Trotter spoke to people at Luverne High, but was unable to obtain Wood’s

academic records because Luverne High did not respond to his subpoena and its

staff was generally unhelpful.14

As to Dr. Kirkland, Trotter testified Dozier was the primary contact. Trotter

recalled Wood was evaluated by a psychologist and a report was prepared.

Trotter’s fee declaration indicated he had a thirty-minute conversation with Dr.

Kirkland in 1994. According to Trotter, Dozier would have initially reviewed Dr.

Kirkland’s report, and if “Dozier thought that [there] was something that [Trotter]

should review or have, then he would give [Trotter] a copy . . . to review as well.”

That Dozier made the penalty phase decisions is particularly shown by what

happened in deciding whether to obtain another psychological evaluation of Wood

beyond Dr. Kirkland’s. After the jury trial, Trotter sent Dozier and Ralph a letter

suggesting the possibility of moving for a continuance of the sentencing hearing

before the trial judge in order to request another psychological evaluation.

14
No academic or other records from Wood’s high school days were even produced at the
Rule 32 hearings. Instead, Wood’s teachers testified at the Rule 32 hearings, without any
records.

25
Trotter’s letter noted to Dozier: “We have not had any independent psychological

evaluations done since you said it would not be needed.” Trotter explained that

prior to the penalty phase, Dozier had determined that they did not need any further

evaluations, and Dozier had determined that nothing in Dr. Kirkland’s report

merited going further, as follows:

[O]n or about the time that we would have been having discussions
with [Dr.] Kirkland . . . there may have been a discussion about
whether we should do anything further and . . . Mr. Dozier had
indicated that he had looked at the report and that . . . there was
nothing in the report that merited going further. And so at that point,
he determined that we didn’t need any further evaluators and no
further were called because in the course of my preparation for the
penalty phase, I would read things about different psychological
evaluations and had raised that to him. And, again, he [Dozier]
looked at the report and thought that wouldn’t be needed.

(Emphasis added.) While Trotter suggested an additional psychological

evaluation, Dozier, as lead counsel, reviewed Dr. Kirkland’s report and decided not

to seek another evaluation. Trotter “relied upon Mr. Dozier’s opinion of the

psychiatry evaluation” by Dr. Kirkland.15

D. Penalty phase before the jury

Although Dozier was lead counsel and made the trial strategy decisions,

Wood bases his ineffective assistance claims mainly on Trotter’s role in the penalty

15
Trotter’s testimony about Dozier’s active and supervisory role in the penalty phase,
along with similar testimony from Ralph and Dozier recounted supra, contradicts Wood’s claim
that Trotter was “without the assistance of the senior attorneys.”

26
phase. Thus, we detail what happened in the penalty phase.

First, all three attorneys were present and participated in the penalty phase

before the jury. Dozier handled various arguments, objections, and oral motions to

the court on Wood’s behalf, as well as the jury charges. Ralph also argued on

Wood’s behalf. Although Dozier and Ralph participated in the courtroom work,

Dozier and Ralph had earlier decided Trotter would present the mitigation

witnesses and argue to the jury. Dozier went over the penalty phase motions with

Trotter.

On the morning the penalty phase began, the trial court handled three

matters before the jury was brought in. The first matter was the State’s notice of

aggravating circumstances. Dozier and Ralph argued the State failed to give

proper notice of one of the aggravating circumstances—that Wood committed the

murder after being convicted of a crime of violence. The trial judge denied

Dozier’s motion to exclude that aggravating circumstance.

The second matter was the pre-sentencing report to be prepared for the trial

judge after the jury made its sentencing recommendation. Trotter reminded the

trial judge that in May 1994, Dr. Kirkland produced his evaluation of Wood and

Dr. Kirkland’s report indicated Wood had “a history of antisocial behavior and

problems with anger control.” Trotter told the trial judge: “[W]e don’t intend to

27
introduce [the Kirkland] report today to the jury.” (Emphasis added.) While all

counsel had Dr. Kirkland’s report, Dozier had made the decision not to use the

report with the jury and not to seek another psychological evaluation.

However, Trotter also told the trial judge that “[n]o further investigation

ha[d] been done, psychologically, of those points” and Trotter asked the judge that,

prior to the court’s final sentencing verdict, there be further psychological

evaluation done of Wood. The trial judge stated he would consider Trotter’s

request after the jury was released, and pointed out that under the governing

statute, the trial judge sets a date for sentencing after the jury’s recommendation

and only then orders the filing of the pre-sentencing report.

The third matter involved Trotter advising that Wood’s counsel had not

received records from the Board of Pardons and Paroles, the state prisons, and the

Department of Human Resources. The State responded that a Pardons and Paroles

clerk was under subpoena to testify, and the State had no objection to letting

Wood’s counsel look through Wood’s parole file, which the clerk was bringing to

the hearing. The court ruled Wood’s counsel would have access to the clerk’s file

during a break in the penalty phase and further ruled that, if necessary and upon

request, Wood’s counsel could also have access to Wood’s parole officer’s file.

The trial court asked the defense if it was ready to proceed, and Dozier

28
responded the defense was ready. The jury was brought in, and each side gave

opening statements. Trotter gave the opening statement for Wood, stressing the

option of life without parole. Trotter advised the jury, inter alia, that the defense

would present evidence to show there were ample reasons to return an advisory

verdict of life imprisonment without parole.

The State put on its case for aggravating factors, introducing a certified copy

of Wood’s prior conviction for first-degree assault. The Pardons and Paroles clerk

testified Wood was on parole when he murdered Ruby. Another witness testified

the District Attorney had recommended against Wood’s parole.

The State attempted to call Siler, the victim in Wood’s prior assault

conviction, and Trotter objected. Trotter argued that the details of Wood’s crime

against Siler were unduly prejudicial. The court sustained Trotter’s objection and

refused to allow the State to present Siler’s testimony regarding the specific details

of Wood’s assault against her. The State rested.

Trotter’s success in keeping out Siler’s testimony was significant. While the

jury knew Wood had a prior assault conviction for shooting his girlfriend, the jury

did not know the circumstances of that shooting and Ruby’s murder were the same,

which would have established Wood’s killing of Ruby was highly premeditated

and aggravated. The State wanted to show Wood suspected Siler was seeing

29
another man, snuck around Siler’s house, and attempted to kill her at her own

home by shooting her through a window. In both shootings, Wood suspected his

girlfriends were seeing other men, snuck around their residences, and shot them out

of jealousy at their own homes. This striking similarity would have undermined

Wood’s mitigation claim that he shot Ruby only in the heat of passion and due to

alcohol.

After keeping Siler’s testimony out, Trotter called three mitigation witnesses

to show the very difficult childhood and many hardships Wood had suffered, and

to illustrate how Wood, despite these extreme hardships, was a good, responsible

brother and son who worked tirelessly to help support his five sisters and was a

leader in their family life. The defense team portrayed Wood as a responsible

person whose life was worth saving and showed Wood was despondent and

drinking because Ruby rejected him, as opposed to a heartless, cold-blooded

murderer.

The primary mitigation witness was Wood’s oldest sister Johnnie, who

portrayed their difficult childhood and how Wood was, nevertheless, extremely

responsible and hardworking. According to Johnnie, their mother died when

Wood was ten years old. Johnnie explained that after their mother died, they

stayed with a cousin for approximately four years, and after that, she (Johnnie)

30
raised Wood and their four sisters. Johnnie testified that after their mother died,

but before they moved out of their cousin’s house, their brother Samuel was killed

in a car accident.

Johnnie testified that when Wood turned fifteen, he quit school and got a job

at the Pepsi-Cola plant “in order to . . . help provide for the household, because we

didn’t have any help or nothing like that.” According to Johnnie, Wood quit

school to provide for the household “because he was the only son that was there

and we needed a lot of things by the other kids growing up.” Wood gave Johnnie

money from his job to buy groceries and cleaning supplies. Johnnie explained

Wood bought a car for the family “in order to provide for us to have a way to go

back and forward to the store in order to get groceries.” The car cost about $200,

and after making a down payment of approximately $100, Wood paid money on

the car every two weeks.

Johnnie stressed Wood was “a leader” in the family even though he was

younger than Johnnie and other siblings. Johnnie emphatically told the jury: “if it

hadn’t been for [Wood] . . . providing for [the family,] I don’t know where we

would have been at.”

Wood’s father, J.P. Wood, and Wood’s other older sister, Lillie Jean Wood,

also testified. Lillie Jean explained she was close with her brother and was scared

31
that he might receive the death penalty. Lillie Jean stated she “always had [Wood]

to look up to” and could “ask him for something and he wouldn’t ever say no.”

J.P. Wood testified Wood was a “good boy” and a “good son.” He also testified

that when Wood was a child, he helped with chores around their farm.

Wood’s counsel recalled the Pardons and Paroles clerk to establish Wood’s

parole file contained the arrest report and the report stated Wood was drinking at

the time of the arrest. During the guilt phase, there was also testimony that Wood

was drinking during the day and night of Ruby’s murder.

Before closing arguments, the trial court held a hearing in chambers, in

which Dozier argued the State had failed to prove the alleged aggravating

circumstances. Dozier moved to strike the aggravating circumstances on that

ground and also as not being alleged in the indictment. The trial court denied

Dozier’s motion. The court then discussed the jury charges. Dozier, and to some

extent Ralph, handled the arguments about the jury charges.

In its closing statement, the State argued it had established three aggravating

factors: (1) Wood murdered Ruby during a burglary; (2) Wood had a prior

conviction for a violent felony; and (3) Wood murdered Ruby while on parole.

In reply, Trotter’s closing argument emphasized the jury could consider not

only the mitigation evidence from the penalty phase, but also all the trial evidence

32
about the circumstances of the crime, including Wood’s alcohol consumption on

the night of the murder and that Wood was a good son and brother who dropped

out of school to work and to help support his family. Trotter reviewed Wood’s

very difficult childhood, emphasizing Wood was ten when his mother died and had

to move in with his cousin and live in a sixteen-person house for four years.

Trotter stressed how Wood left school to make money to support his five sisters.

In addition to the hardships in Wood’s life, Trotter argued there were

mitigating circumstances surrounding the crime, and this was not a case of cold-

blooded murder. Trotter argued that Ruby was the mother of Wood’s child, and

that Wood loved Ruby but she rejected him. Trotter emphasized that the more

Wood drank on the day of the murder, the more he thought about Ruby and not

seeing his child, and his reasoning was clouded by those emotions and his alcohol

consumption. As Trotter summarized, Wood lost his mother at age ten, and now

his girlfriend and the mother of his child were rejecting him too. Trotter asked the

jury to consider all the childhood difficulties and the emotional factors that brought

Wood to the point where he was on the night of the murder. Although alcohol was

not a defense to Wood’s crime, Trotter argued it was a strong mitigating factor,

especially since Wood had been drinking all day up until the crime.

The State made a rebuttal closing argument to the jury. Dozier objected to

33
part of the State’s rebuttal, but the trial court overruled Dozier’s objection.

The trial court, inter alia, instructed the jury about mitigating factors and

read a list of statutory mitigating factors that the jury could consider, including: (1)

whether the capital felony was committed while Wood was under extreme

emotional disturbance; and (2) whether Wood’s capacity to conform his conduct to

the requirements of law was substantially impaired. The trial court told the jury

the latter mitigating circumstance would exist even if the defendant appreciated the

criminality of his conduct, as long as his capacity to conform to the law was

substantially impaired. The trial court explained that this was so because “a person

may appreciate his actions [are] wrong and still lack the capacity to refrain from

doing them.”

The trial court’s instructions made it clear that “[e]vidence of a difficult

family history and of emotional disturbance constitutes relevant mitigating

evidence.” The trial court instructed the jury that the list of statutory mitigating

factors was non-exhaustive and that “mitigating circumstances shall include any

aspect of [the] defendant’s character, or record or any of the circumstances of the

offense that defendant offers.” The jury recommended a death sentence by a vote

of 10-2.

E. Penalty phase before the state trial judge

34
 Approximately one month later, the trial court held a sentencing hearing.

The court and counsel reviewed the pre-sentencing report. Dozier made numerous

objections to errors and omissions in the pre-sentencing report, and Trotter lodged

objections too. The trial court sustained most objections. The pre-sentencing

report included two psychological evaluations for consideration by the sentencing

judge:16 (1) Dr. Kirkland’s May 1994 report; and (2) a June 1992 evaluation by the

office of Dr. Harry A. McClaren, Ph.D.17

After the State argued, Dozier presented the initial argument for Wood and

contended the facts were not sufficient to support a death sentence. Dozier stressed

that Wood and Salter had been drinking all day on the day of the murder, and that

Wood came to Troy, Alabama to find his girlfriend and shot her only in the heat of

passion. Trotter then emphasized Wood’s difficult family history: he lost his

mother when he was ten; he had no father figure in his home; and he was raised by

various members of the family, including his older sister. Trotter stressed Dr.

16
A week before the judge rendered his final sentence, Trotter specifically verified before
the trial judge that “the psychological reports . . . [were] attached as part of the record” to
Wood’s pre-sentencing report.
17
In June 1992, Wood was evaluated by Michael T. D’Errico, Ph.D., a Certified Forensic
Examiner in Dr. McClaren’s office. The report is on Dr. McClaren’s stationery but signed by
Dr. D’Errico. Because the Rule 32 orders tend to refer to this evaluation as Dr. McClaren’s
report, we do the same for clarity. Dr. McClaren’s report is consistent with Dr. Kirkland’s
report, and as discussed later, both reports are consistent with the two Rule 32 psychologists’
testimony.

35
Kirkland’s conclusion that Wood could not “use abstraction skills much beyond

the low average range of intellect, and that he [was] at most functioning in the

borderline range of intellectual functioning,” and Trotter emphasized Wood’s

anger control and antisocial behavior problems.

A week later, the trial judge sentenced Wood to death. The judge found

Wood was not “under the influence of extreme mental or emotional disturbances”

at the time of the murder and had “the capacity to appreciate the criminality of his

conduct and to conform his conduct to the requirements of law.” The trial court

noted defense counsel had asked the court to consider Dr. Kirkland’s report, and

observed that the report showed Wood was functioning in the borderline range of

intellect but did “not have a mental disorder present that would detract from his

ability to appreciate the criminality of his behavior.”

The trial court observed that the jury was charged as to the relevant

aggravating and mitigating circumstances. The trial court further noted that both

defense counsel and the State were satisfied with the jury charge as given. As to

aggravating circumstances, the trial court found, inter alia, that: (1) the capital

offense was committed while Wood was under a sentence of imprisonment; (2)

Wood was previously convicted of a violent felony; and (3) the capital offense was

committed while Wood “was engaged in the commission of or an attempt to

36
commit or flight after committing . . . burglary in the first degree.” As to

mitigating circumstances, the trial court found none, and noted Wood was not

under the influence of extreme mental or emotional disturbance during the

commission of the capital offense and Wood had the capacity to appreciate the

criminality of his conduct and to conform his conduct to the law. The trial court

concluded, “beyond a reasonable doubt,” that the aggravating circumstances “far

outweigh[ed]” any evidence of mitigating circumstances “in all regards” and were

“sufficient in both quantity and quality to more than uphold the jury’s verdict

recommending the death penalty.”

F. Rule 32 proceedings between 2000 and 2003

After Wood’s death sentence was affirmed on direct appeal, Wood filed his

Rule 32 petition for post-conviction review. Between 2000 and 2003, there were

three evidentiary hearings, and the Rule 32 court entered three orders denying

Wood’s claims. The second order repeated some of the first order’s findings and

conclusions and added to them, and the third order did the same. We already

recounted the Rule 32 testimony from Wood’s counsel, school teachers, Siler,

Wright, and psychologists McClaren and Prichard. The Rule 32 court also

considered testimony from Wood’s sisters, which we now review. We then

summarize the three Rule 32 orders.

37
 In her testimony, Wood’s sister Maeola detailed their strict upbringing and

how after their mother died, they lived with a half-sister, Nellzena, and a cousin.

According to Maeola, Nellzena was very strict and would whip the children with

an extension cord for hours whenever they did something wrong. Maeola testified

that after Nellzena left, Wood and Johnnie fought with some frequency; Wood did

not listen to Johnnie; and Wood was kicked out of school and did not leave school

to support the family.18 The Rule 32 court found Maeola’s testimony “less than

credible.”

Johnnie corroborated Maeola’s testimony about their strict upbringing and

agreed Nellzena was strict. However, Johnnie testified Nellzena did not hit them

regularly and would instead “mostly punish.” Nellzena would punish Wood by

making him clean up the backyard, not allowing him to play after school,

grounding him, or forbidding him to have company. Their mother whipped Wood

for wetting the bed, a problem that he had until he was fourteen or fifteen, but she

“never hurt” them and did not physically abuse them. Johnnie’s testimony at the

Rule 32 hearing is consistent with Dr. Kirkland’s statement that Wood “denies any

sexual or physical abuse . . . [or] history of criminal victimization.”19

18
Maeola acknowledged that Johnnie “would probably know better” if she testified
differently.
19
As the district court concluded, Wood has not shown ineffective assistance as to
counsel’s investigation of his childhood. Johnnie testified extensively at trial about Wood’s

38
 We now turn to the three Rule 32 orders, which addressed Wood’s

ineffective assistance claims at length. As to pre-trial investigation, the Rule 32

court found Dozier and Ralph were “very experienced attorneys,” and Trotter,

although “very inexperienced,” was to assist Dozier and Ralph and benefitted from

their experience. Trotter “was assistant to Mr. Dozier and Mr. Ralph”; relied on

their criminal law experience to help him assist them; and obtained books and had

discussions to gain a greater understanding of what they might want to bring out at

the trial in either phase.

The Rule 32 court found Wood’s trial counsel requested the psychological

evaluation rendered by Dr. Kirkland in May 1994, and Wood’s trial team

corresponded frequently with Dr. Kirkland. The Rule 32 court found: (1) counsel

employed the services of a private investigator—Taylor—who prepared reports

used in Wood’s defense; (2) Trotter met with Wood’s family to prepare for the

penalty phase and attempted to gather information about Wood’s upbringing,

background, and childhood, in order to humanize Wood in the jury’s eyes; (3)

counsel contacted and attempted to get information from Wood’s schools, the

Alabama Department of Pardons and Paroles, the Alabama Department of

difficult childhood and poverty, and most of the Rule 32 evidence from Maeola was cumulative.
See Glock v. Moore, 195 F.3d 625, 636 (11th Cir. 1999). To the extent there was any difference
between Johnnie’s and Maeola’s testimony, the Rule 32 court found Maeola’s testimony to be
“less than credible.”

39
Corrections, and the Alabama Department of Human Resources; (4) counsel

sought guidance from the Capital Resource Center and the Southern Poverty Law

Center; (5) Wood’s father and two sisters testified at the penalty phase; and (6)

evidence was presented suggesting Wood suffered from an emotional disturbance.

Trotter investigated Wood’s educational background to some extent and “trial

counsel met with Wood’s family on several occasions to discuss possible

mitigating evidence.”

As to Dr. Kirkland’s pre-trial report, the Rule 32 court observed that it stated

Wood: (1) was “cooperative, attentive, and interested in the evaluation process”;

(2) was “neatly dressed” and had good hygiene; (3) had a “normal thought

process”; (4) exhibited “goal-directed and logical” thinking; (5) “evidenced a

normal affect”; (6) “did not evidence any memory deficits”; (7) “evidenced

concrete reasoning ability” and could use “abstraction skills” at the “low average

range of intellect,” despite “functioning, at most, in the borderline range of

intellectual functioning”; (8) had “a good relationship with his attorneys” and was

“able to discuss his case in detail with [them]”; and (9) “had a complete memory of

his behavior” at the time of the murder.20 Dr. Kirkland’s report concluded: (1)

20
Wood told Dr. Kirkland: (1) “I don’t need this evaluation—I’ve got plenty of
sense—I’m not crazy I never have been”; (2) he had benefitted from reading the Bible and law
books in prison, and (3) he had in fact increased his knowledge of the judicial process by reading
law books.

40
Wood had no “mental disorder present that would detract from his ability to

appreciate the criminality of his behavior with regard to this specific alleged instant

offense” of murder; (2) “[t]here is no allegation of any mental disorder factors in

the explanation of thought or behavior process variables at all on the day of the

alleged offense”; and (3) “[r]eview of collateral data and interview data . . . do[es]

not reveal the presence of a mental disorder that would bear any causal relationship

to [Wood’s] alleged behavior on the day of the offense.”

The Rule 32 court specifically found that counsel decided calling Dr.

Kirkland was not in Wood’s best interest, and “counsel investigated a potential

mental health defense, but decided against presenting it.” The Rule 32 court

observed that counsel’s decision “was based on at least one mental health

evaluation, and most probably two,” 21 and found that as very experienced

attorneys, Dozier’s and Ralph’s decision not to raise a mental deficiency issue at

Wood’s trial was due great deference. Dozier testified he was “positive that he

reviewed Dr. Kirkland’s report,” and counsel “would have used anything in Dr.

Kirkland’s report that was helpful to them.”

The Rule 32 court concluded Wood had the burden of proving counsel’s

decision to not call Dr. Kirkland was unreasonable and “Wood failed to establish

21
The Rule 32 court noted Dr. McClaren conducted a forensic psychological evaluation
of Wood in June 1992.

41
that what trial counsel did in preparation and investigation for the penalty phase

was unreasonable.” The Rule 32 court noted Wood did not question his trial

counsel at the Rule 32 hearings “as to the reasoning behind the strategy employed,

[the] witnesses called to testify and those who were not asked to give testimony,”

which yielded a silent record and a strong and continuing presumption of

reasonable professional judgment. As to Dr. Kirkland specifically, the Rule 32

court observed that “[b]ecause Wood did not ask Attorneys Ralph or Dozier about

this matter, the record is silent as to why they did not call Dr. Kirkland as a

witness.” The Rule 32 court found Wood’s trial counsel made a decision not to

call Dr. Kirkland and that the silent record created a presumption that experienced

counsel exercised sound judgment in not calling Dr. Kirkland.

The Rule 32 court also found counsel were not unreasonable in not obtaining

an additional psychological evaluation beyond Dr. Kirkland’s. Counsel

“thoroughly reviewed Dr. Kirkland’s report and determined that nothing in that

report merited further investigation”; “Wood’s counsel made a reasonable

judgment that another mental evaluation was not necessary”; and, in light of the

fact that Wood’s counsel were “very experienced attorneys,” “reasonable counsel

could have decided against seeking another mental health evaluation, in order to

prepare other, more promising, defenses for trial.” The Rule 32 court specifically

42
found that Trotter testified Dozier was the primary contact person for Dr. Kirkland

and the trial team “did not request another psychological evaluation of Wood

because Mr. Dozier thoroughly reviewed Dr. Kirkland’s report and decided that

nothing in the report merited further inquiry.”

Alternatively, the Rule 32 court concluded Wood had not established

prejudice. The Rule 32 court found “Wood did not demonstrate a reasonable

probability that but for counsel’s allegedly unprofessional errors, the result of the

proceeding would have been different.” Even if Wood’s counsel had presented

evidence concerning his impaired intellectual functioning, there was no reasonable

probability that the balance of aggravating and mitigating factors that led to the

imposition of the death penalty would have changed, and “nothing in the evidence

presented during the evidentiary hearing established that some portion of the

defendant’s character or record . . . served as a basis for a sentence of life

imprisonment without parole rather than death.” In light of the fact that Wood

brutally murdered Ruby while she was asleep in her bed in her own home, there

was no reasonable probability that the presentation of evidence concerning Wood’s

mental deficiencies would have changed the jury’s 10-2 recommendation of a

death sentence or the finding that the aggravating circumstances outweighed the

mitigating circumstances.

43
 G. 2004 Rule 32 appeal

In 2004, the Alabama Appeals Court affirmed the Rule 32 court’s denial of

Wood’s petition. Wood v. State, 891 So. 2d at 420. The Alabama Appeals Court

rejected Wood’s claim that his trial counsel were ineffective by failing to

“investigate and present sufficient mitigating evidence during the penalty phase,”

and expressly adopted and agreed with the Rule 32 court’s extensive fact findings

and conclusions that Wood failed to establish deficient performance and prejudice

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Wood v.

State, 891 So. 2d at 414, 418-19. The Alabama Appeals Court concluded “counsel

does not necessarily render ineffective assistance simply because he does not

present all possible mitigating evidence” and “counsel may make a reasonable

strategic judgment to present less than all possible available evidence in

mitigation.” Id. at 416 (quotation marks and citations omitted). The Alabama

Appeals Court noted, “[t]here has never been a case where additional witnesses

could not have been called.” Id. (quotation marks and citation omitted).

H. District court’s § 2254 order

Wood then filed a § 2254 petition. The district court’s § 2254 order noted

this is “not a case . . . in which counsel failed to investigate, obtain, or present any

mitigating evidence to the sentencing jury. Instead, this is a case in which at least

44
some evidence was investigated and presented.” Wood v. Allen, 465 F. Supp. 2d

at 1239. The district court pointed out that evidence of Wood’s difficult childhood

and poverty was presented to the jury, and concluded there was no ineffective

assistance as to those mitigation issues. Id.

However, the district court granted Wood’s § 2254 petition based on trial

counsel’s failure to investigate and present evidence of Wood’s impaired

intellectual functioning. Id. at 1245. The district court noted “Wood’s three trial

counsel” actually possessed Dr. Kirkland’s report, which showed that Wood “‘is

functioning, at most, in the borderline range of intellectual functioning’”; “‘could

not use abstraction skills much beyond the low average range of intellect’”; and

“reads on a third grade level.” Id. at 1240. The district court concluded that

counsel should have put before the jury evidence of Wood’s “‘borderline range of

intellectual functioning,’” as identified in Dr. Kirkland’s report. Id. at 1243. The

district court also concluded defense counsel failed to investigate further Wood’s

intellectual functioning, such as by interviewing Wood’s teachers or seeking an

evaluation beyond Dr. Kirkland’s. Id. As to prejudice, the district court found

there was a reasonable probability that evidence of Wood’s intellectual

functioning, even if not enough to establish mental retardation, would have

established a mitigating circumstance and was sufficient to undermine confidence

45
in the outcome. Id. at 1245. This appeal followed.

I. Performance prong: presentation of mental health evidence

On appeal, the State contends the district court erred in concluding that the

Alabama courts’ rejection of Wood’s ineffective assistance claims was an

unreasonable application of clearly established federal law. We review the

established federal law and then explain how the Alabama courts’ decision was

fully consistent with that law.

To establish ineffective assistance, Wood must show: (1) counsel’s

performance was deficient; and (2) that deficiency prejudiced him. Strickland, 466

U.S. at 687-92, 104 S. Ct. at 2064-67. Counsel’s performance is deficient when it

falls “below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at

2064. The test for reasonableness is not whether counsel could have done

something more or different. Instead, Wood must show counsel’s performance fell

“outside the wide range of professionally competent assistance.” Id. at 690, 104 S.

Ct. at 2066. Furthermore, “omissions are inevitable. . . . [T]he issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en

banc) (quoting Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987)).

Courts conduct a highly deferential review of counsel’s performance and

46
“‘indulge [the] strong presumption’ that counsel’s performance was reasonable and

that counsel ‘made all significant decisions in the exercise of reasonable

professional judgment.’” Id. at 1314 (alteration in original) (quoting Strickland,

466 U.S. at 689-90, 104 S. Ct. at 2065-66); see also Williams v. Head, 185 F.3d

1223, 1227 (11th Cir. 1999) (same). “When courts are examining the performance

of an experienced trial counsel, the presumption that his conduct was reasonable is

even stronger.” Chandler, 218 F.3d at 1316. Because of this strong presumption

of competent assistance, the petitioner’s burden of persuasion is a heavy one:

“[P]etitioner must establish that no competent counsel would have taken the action

that his counsel did take.” Id. at 1315.

This is not a case where counsel failed to present any mitigation evidence.

Counsel hired an experienced investigator (Taylor) to help gather mitigation

evidence and presented mitigation evidence from three family members about

Wood’s difficult childhood and poverty. For example, the jury was aware that

Wood lost his mother at age ten, had no father figure in his home, and had to live

in a house of sixteen people. The jury knew Wood quit school at age fifteen to

take a job to provide groceries and essentials for his five sisters. Despite these

hardships, Wood was a good, responsible brother and son; was the leader of the

family; and worked tirelessly to support his five sisters. Counsel also presented the

47
arrest report showing Wood was drinking on the day of the murder and argued

Wood was distraught over Ruby leaving him.

This is also not a case where counsel failed to discover prior physical or

sexual abuse or prior mental hospitalizations, treatment, or medication. In fact,

Wood had none of these things.

Nor is this a case where counsel failed to obtain any mental evaluation or did

not know about the mental condition in issue. Wood’s counsel procured a mental

evaluation by Dr. Kirkland to “discover or get a lead on some possible mitigation

evidence.” Dr. Kirkland’s May 1994 report expressly stated Wood had “an IQ in

the borderline range of intellectual functioning,” was “reading on a 3rd grade

level,” and “could not use abstraction skills much beyond the low average range of

intellect.” Counsel had read Dr. Kirkland’s report, knew about Wood’s intellectual

functioning, and decided not to present that evidence.

Thus, this appeal is about whether not telling the jury about Wood’s low

intellectual functioning—shown clearly in Dr. Kirkland’s pre-trial report—was

ineffective assistance. The state courts expressly found: (1) “counsel decided that

calling Dr. Kirkland would not be in Wood’s best interest”; and (2) “counsel

investigated a potential mental health defense, but decided against presenting it.”

Applying Strickland, the state courts concluded that counsel’s decision—not to call

48
Dr. Kirkland and not to present Wood’s mental deficiencies to the jury—was not

deficient performance.

For several reasons, Wood has not established that the state courts’ decision

was contrary to, or an unreasonable application of, established Supreme Court

precedent or based on an unreasonable determination of the facts. First, the Rule

32 evidence amply supports the state courts’ fact findings.22 Very experienced

counsel Dozier and Ralph had Dr. Kirkland’s report revealing Wood’s mental

deficiencies but did not give it to the jury or have Trotter give it to the jury. Dozier

was the primary contact with Dr. Kirkland and had a lot of correspondence with

him, and even Trotter specifically testified that Dozier had reviewed Dr. Kirkland’s

report. While Dozier had no files left and could not recall the details of Dr.

Kirkland’s report six years later, he was sure they would have used anything useful

in the report. Moreover, at the start of the penalty phase, Dozier and Ralph were

present in court when Trotter expressly told the trial judge, on the record and on

behalf of the trial team, that Dr. Kirkland had evaluated Wood and counsel did not

intend to introduce Dr. Kirkland’s report to the jury. Trotter testified that Dozier

reviewed Dr. Kirkland’s report and decided nothing merited going further. And

22
Whether counsel made a decision “regarding what evidence to put forth at sentencing is
a question of fact.” Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir. 1995); see also Gaskin v.
Sec’y, Dep’t of Corr., 494 F.3d 997, 1003 (11th Cir. 2007).

49
Dozier and Ralph, as experienced counsel, were present in court during the entire

penalty phase. The evidence amply supports the state courts’ fact findings that

experienced counsel (1) decided calling Dr. Kirkland would not be in Wood’s best

interest, and (2) decided against presenting mental health evidence. Wood has

wholly failed to show the state courts made an unreasonable determination of the

facts.23

Second, Wood has not shown counsel’s decision—not to call Dr. Kirkland to

testify about Wood’s mental deficiencies—fell below an objective standard of

reasonableness. Chandler, 218 F.3d at 1312. After finding counsel decided calling

Dr. Kirkland would not be in Wood’s best interest, the Rule 32 court pointed out

the record was silent as to counsel’s particular reasoning behind that best-interest

decision. The state courts concluded: (1) Dozier and Ralph were very experienced

attorneys; (2) “a silent record creates a presumption that trial counsel exercised

sound professional judgment” in not presenting Dr. Kirkland’s evidence of Wood’s

23
At a minimum, Wood has not presented evidence, much less clear and convincing
evidence, that counsel did not make such decisions about Dr. Kirkland’s report and a mental
health defense. See Bolender v. Singletary, 16 F.3d 1547, 1558 & n.12 (11th Cir. 1994) (holding
that “state court findings of historical facts made in the course of evaluating an ineffectiveness
claim,” such as the state court’s finding that defense counsel was aware of defendant’s general
background, were entitled to presumption of correctness). Our colleague’s separate opinion
basically conducts de novo review and cherry picks certain statements to support its conclusions,
rather than examining whether there is evidence to support the state courts’ findings. The main
difference between the opinions is that the majority applies the required AEDPA deference but
the separate opinion does not.

50
mental deficiencies; and (3) Wood did not ask Dozier or Ralph about the matter,

and thus Wood failed to carry his burden of showing counsel’s decision—not to

call Dr. Kirkland and present evidence of Wood’s mental deficiencies—was

objectively unreasonable.

The state courts correctly followed Chandler, which instructs: (1) “Courts

must indulge the strong presumption that counsel’s performance was reasonable

and that counsel made all significant decisions in the exercise of reasonable

professional judgment”; and (2) “an ambiguous or silent record is not sufficient to

disprove the strong and continuing presumption,” such that “where the record is

incomplete or unclear about counsel’s actions, we will presume that he did what he

should have done, and that he exercised reasonable professional judgment.”

Chandler, 218 F.3d at 1314 & n.15 (quotation marks, brackets, and citations

omitted). Dozier and Ralph were very experienced counsel and their professional

judgment is entitled to a presumption of reasonableness under Strickland and

Chandler.

Wood has not presented any evidence to rebut the presumption that

experienced trial counsel’s decision—not to call Dr. Kirkland and not to present

mental health evidence—was reasonable. It was not the State’s burden to elicit

from Dozier, Ralph, or Trotter the reason why Dr. Kirkland’s report of Wood’s

51
mental deficiencies was not presented to the jury in the penalty phase. Instead, it

was Wood’s burden to rebut the presumption of reasonableness with evidence,

which he wholly failed to do.24

Even ignoring this strong presumption that experienced trial counsel

exercised reasonable professional judgment, counsel’s decision to present less than

all available potential mitigation evidence was still not deficient performance. As

the State points out, Dr. Kirkland’s report contained information harmful to Wood,

such as: (1) Wood’s statement to Dr. Kirkland denying he drank alcohol on the day

of Ruby’s murder, which would have undercut Wood’s defense that he was

distraught and drinking heavily that day; (2) Dr. Kirkland’s description of how

Wood shot his prior girlfriend Siler through the window of her own residence after

seeing her with another man, which Trotter had kept from the jury by successfully

objecting to Siler testifying in the penalty phase; and (3) Wood’s nineteen prior

24
In Callahan v. Campbell, 427 F.3d 897, 922, 934 (11th Cir. 2005), this Court applied
Chandler’s ruling—that a silent record will not rebut the strong presumption that counsel
exercised professional judgment—in denying § 2254 relief for claims based in part on counsel’s
failure to procure and present expert mitigation evidence of the defendant’s “mild cognitive
deficit” and “paranoid personality disorder.” The attorney had died, and there was no testimony
from him. Callahan, 427 F.3d at 933. In denying relief, this Court presumed “the attorney ‘did
what he should have done’” and “‘exercised reasonable professional judgment,’” and held the
burden is on the defendant to prove his trial counsel did not take the necessary steps in the
penalty phase. Id. (citation omitted).
This case is stronger than Callahan for triggering the presumption of reasonable
professional judgment, because Dozier testified he would have used what was in Dr. Kirkland’s
report if Dozier had found it useful, and Trotter testified Dozier reviewed Dr. Kirkland’s report
and decided nothing merited going further.

52
arrests between 1981 and 1984.25 If Dr. Kirkland had testified about Wood’s

mental deficiencies, this damaging information likely would have been brought out

on cross-examination or in rebuttal.26 Further, if Dr. Kirkland had testified, the

jury would have learned that Wood—despite his borderline intellectual

functioning—had a high level of adaptive functioning; Wood had a complete

memory of his behavior at the time of the murder; there was no causal relationship

between Wood’s mental condition and his behavior on the day of the murder; and

Wood had no mental problem that detracted from his appreciation of the

criminality of his behavior when he snuck into Ruby’s house with a loaded shotgun

and killed her in her bed. Additionally, presenting evidence of Wood’s mental

deficiencies, special education classes, and third-grade reading level might have

suggested Wood left school for those reasons and not only because he had to work

and support his five sisters financially.

“[C]ounsel is not required to present all mitigation evidence, even if the

additional mitigation evidence would not have been incompatible with counsel’s

25
While many of these offenses were traffic violations (including arrests for reckless
driving, reckless endangerment, driving without a license, and four arrests for speeding), Dr.
Kirkland’s report also reflected that Wood had more serious prior arrests, including an arrest for
harassment, three separate arrests for theft of property, and an arrest for criminal possession of a
forged instrument. See also infra note 34.
26
As discussed in the prejudice section infra, if Wood’s counsel had presented mental
health evidence through the Rule 32 witnesses, Dr. Kirkland’s report (and the harmful
information therein) would have been introduced by the State.

53
strategy. Counsel must be permitted to weed out some arguments to stress others

and advocate effectively.” Haliburton v. Sec’y for the Dep’t of Corr., 342 F.3d

1233, 1243-44 (11th Cir. 2003) (quotation marks and citations omitted); see

Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1348-50 (11th Cir. 2005)

(rejecting ineffective assistance claim where defendant’s mother was only

mitigation witness and counsel did not introduce evidence from hospital records in

counsel’s possession showing defendant’s brain damage and mental retardation or

call psychologist who evaluated defendant pre-trial as having dull normal

intelligence); Hubbard v. Haley, 317 F.3d 1245, 1254 n.16, 1260 (11th Cir. 2003)

(stating this Court has “consistently held that there is ‘no absolute duty . . . to

introduce mitigating or character evidence’” and rejecting claim that counsel were

ineffective in failing to present hospital records showing defendant was in

“borderline mentally retarded range”) (brackets omitted) (quoting Chandler, 218

F.3d at 1319) .

Our decision in Hubbard is particularly instructive as to why it was not

deficient performance for counsel not to present evidence of Wood’s low IQ.

Hubbard claimed his trial counsel were ineffective for failing to introduce, as

mitigation evidence, hospital records that showed his “verbal I.Q. of 77 and a full

scale I.Q. of 80—both in the borderline mentally retarded range”—and his history

54
of alcoholism. 317 F.3d at 1254 n.16, 1260.27 The post-conviction state court

concluded any evidence of Hubbard’s mental state would have been more than

offset by reports that determined Hubbard had not suffered from any mental

disease or defect at the time of the murder. Id. at 1260. Similarly, Dr. Kirkland’s

report concluded Wood had borderline intellectual functioning but still had a

complete memory of his behavior at the time of the murder and fully appreciated

the criminality of his conduct.

For all these reasons, Wood has not shown the state courts’ conclusion—that

his counsel were not ineffective in not calling Dr. Kirkland and presenting mental

health evidence—was contrary to, or an unreasonable application of, clearly

established federal law or based on an unreasonable determination of the facts.

J. Performance prong: additional investigation

Wood also claims: (1) his counsel did not conduct a thorough investigation

and were ineffective on this basis alone; and (2) Dozier’s decision—not to call Dr.

Kirkland about Wood’s mental deficiencies—was not based on a thorough enough

investigation and cannot be considered reasonable.

27
Like Wood’s case, Hubbard’s attorneys did not present reports showing Hubbard’s IQ
in the borderline mentally retarded range, but instead relied “at sentencing on previously
admitted evidence regarding Hubbard’s habit of drinking and his intoxication on the morning of
the murder, arguing to the jury that these factors mitigated the crime.” Hubbard, 317 F.3d at
1260 & n.25.

55
 The Supreme Court has instructed that (1) strategic choices made after

“‘thorough investigation[s]’” are “‘virtually unchallengeable,’” and (2) counsel has

a separate duty under Strickland “‘to make reasonable investigations.’” Wiggins v.

Smith, 539 U.S. 510, 521-23, 123 S. Ct. 2527, 2535-36 (2003) (quoting Strickland,

466 U.S. at 690-91, 104 S. Ct. at 2066). The Supreme Court has explained

counsel’s investigatory duty as follows:

“Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”

Id. at 521-22, 123 S. Ct. at 2535 (emphasis added) (brackets omitted) (quoting

Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066). Here, the issue becomes: Did

counsel, before deciding not to present evidence of Wood’s borderline intellectual

functioning, make “reasonable investigations” or “a reasonable decision that

ma[de] particular investigations unnecessary?” Id.

As to counsel’s investigation, the state courts found that while Wood

claimed “more should have been done,” the record belied that conclusion. The

Rule 32 court found: (1) counsel employed investigator Taylor, who met with

56
Wood’s family members to seek out mitigation evidence; (2) counsel met with

Wood’s family on multiple occasions to discuss possible mitigation evidence; (3)

counsel moved for and obtained a psychological evaluation from Dr. Kirkland

prior to trial; (4) Trotter met with Wood’s family and gathered information about

Wood’s childhood, upbringing, background, and characteristics in order to

humanize Wood before the jury; (5) counsel attempted to get information from

Wood’s schools and various Alabama institutions where Wood might have spent

time; (6) counsel sought guidance from capital defense organizations; (7) Wood’s

father and two sisters testified at the penalty phase; and (8) counsel presented

evidence of an emotional disturbance. These findings are amply supported by the

record, as discussed.

Indeed, it is undisputed that counsel knew about Wood’s low IQ, borderline

intellectual functioning, and third-grade reading level, because it was included in

Dr. Kirkland’s report. The Rule 32 psychologists’ evaluations essentially agreed

with Dr. Kirkland’s assessment as to Wood’s intellectual functioning and did not

reveal any new mental diseases or disorders. The state courts specifically found

counsel investigated a potential mental health defense, but decided against

presenting it. The Rule 32 court concluded “that Wood failed to establish that

what trial counsel did in preparation and investigation for the penalty phase was

57
unreasonable.” 28

As to obtaining additional psychological evaluations beyond Dr. Kirkland’s,

Trotter testified that “Dozier had indicated that he had looked at the report,” “there

was nothing in the report that merited going further,” and “at that point, he

[Dozier] determined that we didn’t need any further evaluators.” Thus Dozier

decided no further psychological evaluations were needed. The state courts

concluded Wood did not show that no reasonable attorney would have failed to ask

for an additional mental health evaluation beyond Dr. Kirkland’s; emphasized that

Dozier was a “very experienced attorney[]”; and concluded that Wood had not

shown Dozier’s decision about further evaluations was unreasonable. The fact that

no different mental health information was revealed further shows that Dozier’s

28
To the extent Wood relies upon Wiggins, that case is materially distinguishable in
numerous respects. Wiggins’s counsel failed to investigate personal or social history, despite
Wiggins’s own description of his childhood as “disgusting,” and thereby never discovered that
Wiggins had suffered severe sexual and physical abuse throughout a horrific childhood in foster
homes and on the street. Id. at 516-17, 523-25, 123 S. Ct. at 2533, 2536-37. The penalty phase
defense focused solely on Wiggins’s claim he had not actually killed the victim; counsel
presented no evidence of Wiggins’s life history or family background. 539 U.S. at 515, 123 S.
Ct. at 2532. The Supreme Court emphasized that the new post-conviction evidence of Wiggins’s
prolonged sexual and physical abuse was “powerful.” Id. at 537, 123 S. Ct. at 2543.
Here, in stark contrast to Wiggins, Wood’s counsel had investigated and knew about his
borderline intellectual functioning before deciding not to present mental health evidence to the
jury. Moreover, the post-conviction evidence was consistent with Dr. Kirkland’s report and the
other evidence already in counsel’s possession, and there was certainly no new post-conviction
evidence of prolonged and serious sexual or physical abuse. And Wood’s counsel actually
pursued a mitigation strategy—focusing on Wood’s difficult upbringing and childhood, his role
as a family leader, and his sadness over Ruby—instead of simply re-trying the guilt issue. This
case is nothing like Wiggins.

58
investigation was reasonable. In other words, Wood has not even shown that there

was more Dozier needed to know from a further mental evaluation.29

Simply put, the Alabama courts’ decision—that Wood failed to establish his

counsel’s investigation was unreasonable—is amply supported by federal law. See

Williams, 185 F.3d at 1242 (stating generally that counsel’s decisions not to

request additional mental evaluations are “virtually unassailable, especially when

they are made by experienced criminal defense attorneys”); Mills v. Singletary,

161 F.3d 1273, 1286 (11th Cir. 1998) (concluding counsel did not provide

ineffective assistance by not obtaining any mental health evaluation and by failing

to “pursue mental health issues as mitigating evidence”); Bush v. Singletary, 988

F.2d 1082, 1089-92 (11th Cir. 1993) (determining counsel who made strategic

decision not to undertake a formal investigation of psychological and mental health

information did not provide ineffective assistance); see also Holladay v. Haley, 209

F.3d 1243, 1250 (11th Cir. 2000) (observing that counsel are “not necessarily

required to seek independent mental evaluations in order to render effective

assistance”); Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir. 1995) (“The

29
Further, Wood interacted and communicated well with his attorneys. Evidence of a
defendant’s interactions with counsel and his appreciation of the criminality of his conduct are
highly relevant to claims that counsel was ineffective in failing to investigate further or obtain an
additional mental health report. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions.”); Callahan, 427 F.3d at 933 (same); Chandler, 218 F.3d
at 1318-19 (same); Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990).

59
question is whether . . . ending an investigation short of exhaustion[] was a

reasonable tactical decision. If so, such a choice must be given a strong

presumption of correctness, and the inquiry is generally at an end.”) (quotation

marks and citation omitted).30

In Williams, this Court stressed that “[t]he Supreme Court has told us that ‘a

particular decision not to investigate must be directly assessed for reasonableness

in all the circumstances, applying a heavy measure of deference to counsel’s

judgments’”; that “the ‘correct approach toward investigation reflects the reality

that lawyers do not enjoy the benefit of endless time, energy or financial

resources’”; and that “to be effective a lawyer is not required to ‘pursue every path

until it bears fruit or until all hope withers.’” Williams, 185 F.3d at 1236-37

30
Wood relies on Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988), and Brownlee v.
Haley, 306 F.3d 1043 (11th Cir. 2002), but neither case is on point. Stephens was a pre-AEDPA
decision, and in 1988 we were not restricted by AEDPA’s requirement of deference to state court
judgments. Additionally, Stephens’s trial counsel knew he was in a mental hospital for two
weeks, but failed to investigate why. 846 F.2d at 653. Here, Wood has never been in a mental
hospital, and counsel investigated and knew from Dr. Kirkland’s report that Wood had
borderline intellectual functioning, a low IQ, and a third-grade reading level. Further, there was
no harmful information about Stephens lurking in the pre-trial report or that might have been
revealed through further investigation, while Dr. Kirkland’s report contained a great deal of
harmful information.
In Brownlee, counsel conducted no investigation and presented no mitigating evidence at
all, and the State did not even contest Brownlee’s claim that his counsel’s performance was
deficient. 306 F.3d at 1068-69. Moreover, the post-conviction evidence in Brownlee revealed a
wealth of evidence of which counsel was not aware, such as the defendant’s schizotypal
personality disorder, seizure disorder, prior visit to a psychiatric hospital, episode in which he
jumped out of a second-story window, earlier head injury from being shot, history of drug abuse,
and borderline mental retardation. Id. at 1053, 1055-56.

60
(citations omitted). As we said in Williams, “[o]ther attorneys might have done

more or less . . . or they might have made the strategic calls differently, but we

cannot say that no reasonable attorney would have done as [they] did.” Id. at 1244.

Here, Wood has not shown that the state court decisions on his failure-to-

investigate claim are contrary to, or an unreasonable application of, clearly

established federal law.

K. Prejudice prong

The state courts concluded that even if evidence of Wood’s mental

deficiencies had been presented (through Dr. Kirkland or the Rule 32 witnesses),

Wood failed to show a reasonable probability that the outcome would have

changed. Under Strickland, it is not enough for Wood to show that any “errors had

some conceivable effect on the outcome of the proceeding.” 466 U.S. at 693, 104

S. Ct. at 2067. Instead, Wood must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. To establish that, Wood must show that

“absent the errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104

S. Ct. at 2069. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. “A petitioner’s burden

61
of establishing that his lawyer’s deficient performance prejudiced his case is . . .

high.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). A

petitioner must “affirmatively prove prejudice.” Strickland, 466 U.S. at 693, 104

S. Ct. at 2067.

To evaluate prejudice, we must consider the total available mitigation

evidence as adduced pre-trial, at trial, and at the Rule 32 hearings. See Williams v.

Taylor, 529 U.S. 362, 397-98, 120 S. Ct. 1495, 1515 (2000). Here, the Rule 32

witnesses essentially agreed with Dr. Kirkland’s 1994 evaluation that Wood (1)

had a low IQ in the borderline range of intellectual functioning and read on a third-

grade level, but (2) had a normal thought process, engaged in goal directed and

logical thinking, evidenced no memory deficits, could appreciate the criminality of

his conduct, and evidenced concrete reasoning ability.

Specifically, Dr. McClaren described Dr. Ron Cavanaugh’s 1995 evaluation

of Wood, which determined Wood’s full-scale IQ to be 69. Dr. McClaren pointed

out that Dr. Cavanaugh had the impression that Wood functioned higher than mild

mental retardation and “probably in the borderline range.” Dr. McClaren described

his own IQ test of Wood in 2003—which also showed that Wood’s true IQ was

between 61 and 69—as “consistent” with Dr. Cavanaugh’s. Dr. Prichard agreed

with Dr. McClaren’s testimony about Wood’s IQ scores and that the data showed

62
“consistently over time [Wood had] functioned right about the same intellectually.”

Drs. McClaren and Prichard testified Wood “functions at a higher level than a . . .

mildly mentally retarded person,” and Wood’s “adaptive skills are not impaired in

the mentally retarded range.”

The teachers’ testimony about Wood’s intellectual functioning was

consistent with the findings of Drs. Kirkland, McClaren, and Prichard. Penn

testified her special education students had IQs in the 60 to 80 range, and Wood

was a “pretty average” student. Maddox testified the range of IQs for her special

education students was from the low 50s to the upper 70s or even 80, and Wood

probably had an IQ in the low to mid 60s. Penn and Maddox indicated Wood was

neat, clean, attended school regularly, and did not fail his classes. The

psychologists, Siler, Wright, and the teachers all provided extensive testimony

about Wood’s high level of adaptive functioning. Thus, the Rule 32 evidence was

essentially identical to the information in counsel’s possession at the time of trial:31

Wood had a low IQ in the borderline range of intellectual functioning, but

relatively high adaptive functioning.32

31
Dr. Kirkland reported Wood had “problems with anger and impulse control” and
diagnosed Wood with “Antisocial Acts,” just as Dr. McClaren diagnosed Wood with antisocial
personality disorder.
32
This is principally why Wood is not mentally retarded under Atkins. The Rule 32
witnesses were in agreement that Wood functions at a higher level than a mildly mentally
retarded person. Our colleague’s separate opinion repeatedly refers to Wood’s “mental

63
 Wood contends that his counsel should have introduced evidence of his

limited intellectual functioning and special education classes to suggest to the jury

that, though legally culpable, he was less morally culpable because of a diminished

ability to understand and process information, engage in logical reasoning, and

learn from experience. See Atkins, 536 U.S. at 319, 122 S. Ct. at 2251; see also

Williams, 529 U.S. at 398, 120 S. Ct. at 1515.

However, if counsel had introduced evidence of Wood’s limited intellectual

functioning and special education classes and attempted to paint Wood as not

having sufficient intelligence to be morally culpable, the State in rebuttal could

have introduced a wealth of harmful evidence that would have tipped the scales

even more toward a death sentence. Presenting the Rule 32 evidence from the

psychologists and teachers and/or Dr. Kirkland’s findings about Wood’s limited

intellectual functioning would have had four adverse consequences for Wood.

First, presenting mental health evidence would have allowed the State to

introduce Dr. Kirkland’s report about Wood’s intellectual functioning, which

contained harmful information, including: (1) Wood’s statement to Dr. Kirkland

denying that he drank alcohol on the day of Ruby’s murder, which would have

undercut Wood’s defense that he was distraught and intoxicated at the time of the

retardation,” but it is important to note that even the Rule 32 evidence supported the state courts’
finding that Wood is not mentally retarded.

64
murder;33 (2) Wood had problems with anger and impulse control and felt injurious

to others in the past; and (3) Wood had nineteen prior arrests between 1981 and

1984,34 including three arrests for theft of property, one for harassment, one for

reckless endangerment, and one for criminal possession of a forged instrument.

See Gaskin v. Sec’y, Dep’t of Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (denying

ineffective assistance claim and stating “the fact remains that further investigation

and further evidence would have opened the door to damaging personal history

evidence”); Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 788 (11th Cir.

2003) (concluding counsel was not ineffective for failing to introduce evidence of

mental defects and personality disorder because, inter alia, “counsel feared that

evidence of mental defects and personality disorder would undermine [the

defendant’s] credibility and be inconsistent with his alibi defense”); Robinson v.

Moore, 300 F.3d 1320, 1348 (11th Cir. 2002) (denying ineffective assistance claim

and noting “some potential mitigation witnesses might have harmed [the

33
According to Dr. Kirkland’s report, Wood was “quite willing to discuss the lack of
drugs or alcohol on the day of the offense.”
34
In January 1985, Wood received a fifteen-year sentence for his shooting of Siler. Wood
was paroled on the Siler sentence in February 1990 and reincarcerated at some point before he
was paroled again on the Siler sentence in June 1993. Wood murdered Ruby in September 1993.
The nineteen prior arrests would have shown that Wood was consistently in trouble with the law
and only his Siler incarceration stopped his arrests.

65
defendant’s] case”).35

Second, any potential effectiveness of evidence of Wood’s mental

deficiencies from the psychologists or teachers would have been eradicated by the

State’s overwhelming evidence of Wood’s high level of adaptive functioning (at

work and personally); his ability to engage in logical thinking, goal directed and

intentional conduct, and concrete reasoning; his complete memory of his behavior

at the time of the murder; the fact that he had no mental problem that detracted

from his ability to appreciate the criminality of his conduct; and the lack of any

causal relationship between his mental condition and the murder. Wood has not

explained how the overall Rule 32 evidence would have mitigated his criminal

responsibility or moral culpability. If anything, the Rule 32 evidence, along with

Dr. Kirkland’s report, showed that Wood was highly functional, had full

appreciation for the criminality of his conduct, and was indeed morally culpable.

Third, Dr. Kirkland’s report contained important details about Wood’s prior

35
Our colleague’s separate opinion in footnote 15 suggests these arrests may not have
been admitted, but relies on decisions about prior arrests without convictions not being admitted
to show a defendant’s guilt of a separate crime. None of the cited cases involves a penalty phase
trial after a defendant’s guilt has been established. In any event, if counsel had tried to show
Wood’s mental status, the State clearly would have introduced Dr. Kirkland’s report, which
included these arrests, to paint a fuller picture of Wood’s mental functioning. See Gaskin, 494
F.3d at 1004 (noting that “further investigation and further evidence would have opened the door
to damaging personal history evidence”); Chandler v. Moore, 240 F.3d 907, 918 (11th Cir. 2001)
(stating that “hearsay evidence is admissible at a capital sentencing”); Ex Parte McGahee, 632
So. 2d 981, 982-83 (Ala. 1993) (“The trial court may properly consider hearsay at the penalty
phase of the trial if the defendant has an opportunity to rebut the evidence.”).

66
shooting of Siler and how Wood shot her through the window of her own residence

after seeing her with another man, which Trotter had kept from the jury by

successfully objecting to Siler’s testimony in the penalty phase. The jury would

have learned that Wood had previously committed a crime frighteningly similar to

his murder of Ruby, which would have demonstrated Wood calculated his killing

of Ruby and had a pattern of attempting to kill his ex-girlfriends at their own

homes. See Clisby v. State, 26 F.3d 1054, 1057 (11th Cir. 1994) (finding no

prejudice where Clisby committed brutal murder and had killed before). Indeed,

the jury might well have concluded that Wood, after shooting Siler, “learned his

lesson” and realized that in order to be sure he killed an ex-girlfriend who had the

audacity to date another man, he needed to do more than merely shoot through a

window—he had to sneak into the house and shoot her from point-blank range in

her bed. The Siler evidence in Dr. Kirkland’s report would have completely

undermined counsel’s efforts to paint Wood as heartbroken and someone who

killed in the heat of passion, and it also would have been contrary to the defense’s

successful effort to keep Siler from testifying.

Fourth, presenting evidence of Wood’s borderline intellectual functioning

and need for special education classes might have suggested that Wood was not in

regular school classes but was a special education student with a low IQ reading at

67
a third-grade level who left school for that reason. Such evidence might have

weakened trial counsel’s mitigation picture of Wood leaving high school only to

help feed and support his five sisters.

Even if Wood’s counsel could have somehow presented the potentially

favorable evidence from Dr. Kirkland’s report and the Rule 32 hearings without

presenting its unfavorable aspects, Wood has still failed to show that the

potentially favorable evidence would have outweighed the aggravating factors here

and thus changed the outcome of his sentence. In this case, after trying to kill

Ruby—the mother of his child—two weeks earlier and being told to stay away,

Wood snuck into Ruby’s home at night, entered her bedroom, and brutally

murdered her by shooting her in the face with a shotgun at point-blank range.

Wood then bragged to his cousin, “I shot that bitch in the head, and [blew] her

brains out and all she did was wiggle.” Given the brutal, calculated nature of the

murder, it is not reasonably probable that evidence of Wood’s borderline

intellectual functioning and special education classes would have swayed the jury,

especially given Wood’s high level of adaptive functioning. See Clisby, 26 F.3d at

1057.

Here, there were not one or two, but three statutory aggravating

circumstances—(1) Wood murdered Ruby during a burglary; (2) Wood had a prior

68
violent felony conviction; and (3) Wood murdered Ruby while on parole. The

sentencing judge, who did have Dr. Kirkland’s and another psychological report,

even observed that Wood’s aggravating circumstances “far outweigh[ed] the

mitigating circumstances . . . in all regards.” Thus, even when evidence of Wood’s

mental deficiencies was introduced, it was significantly undercut by Wood’s high

level of adaptive functioning, and the three aggravating factors still far outweighed

such mitigation evidence.

In prior cases with three aggravating factors or a brutal murder, this Court

concluded the defendant failed to show a reasonable probability that additional

mitigation evidence would have changed the death sentence. See Callahan, 427

F.3d at 938; Clisby, 26 F.3d at 1057. Moreover, we have rejected prejudice

arguments where mitigation evidence was a “two-edged sword” or would have

opened the door to damaging evidence. Grayson v. Thompson, 257 F.3d 1194,

1227 (11th Cir. 2001); see Gaskin, 494 F.3d at 1004 (affirming death sentence

where jury recommended death by a vote of eight to four, and noting further

mitigation evidence “would have opened the door to damaging personal history

evidence”).

The prejudice outcome in Callahan is instructive here. In Callahan, the

district court granted the writ and found prejudice where counsel failed to present

69
(1) evidence of Callahan’s dysfunctional upbringing and (2) psychological

evidence, such as Dr. Goff’s evaluation that Callahan had a “mild cognitive deficit,

which caused poor memory skills, and a paranoid personality disorder.” Callahan,

427 F.3d at 922, 926.36 Reversing and reinstating the death sentence, this Court

noted that the state court found three aggravating factors, and that particularly

planned or brutal murders make it difficult for even the best lawyers to convince a

sentencer to forgo a death sentence. Id. at 938. In Callahan, the three aggravating

factors similarly were: (1) the crime was committed while the defendant was on

probation; (2) the defendant was convicted previously of a crime of violence; and

(3) the murder was committed during a felony (kidnapping). Id.; see also Hubbard,

317 F.3d at 1260-61 (in light of three aggravating factors found by sentencing

court, defendant failed to establish prejudice from counsel’s failure to introduce

hospital records indicating “mental retardation, and deprived upbringing”).

Likewise, in Clisby, this Court concluded the defendant had not shown

prejudice where counsel failed to introduce evidence of “borderline intellectual

functioning” and “chronic drug and alcohol abuse.” Clisby, 26 F.3d at 1055, 1057

36
“[O]f all the psychiatrists and psychologists to examine Callahan, only one came close
to diagnosing Callahan in the same way [Dr. Goff] did.” Callahan, 427 F.3d at 922. As
discussed, in Wood’s case, there was no material difference of opinion between the Rule 32
mental health experts and the pre-trial mental health expert (Dr. Kirkland), which is another
reason why Wood failed to show that the Rule 32 evidence would have changed the outcome
here.

70
(quotation marks omitted).37 We concluded Clisby did not suffer prejudice, in light

of the brutal nature of the murder—Clisby broke into the victim’s house and killed

him with an axe—and the fact that Clisby had killed before. Id. We concluded,

“[g]iven the aggravating and mitigating factors, nothing Clisby has put forth

undermines our confidence in the outcome of his sentencing proceeding.” Clisby,

26 F.3d at 1057.

Given Wood’s high level of adaptive functioning, nothing in Wood’s Rule

32 evidence establishes a reasonable probability that evidence of his intellectual

functioning and special education classes would have outweighed the strong

aggravating factors here. At a minimum, Wood has not carried his burden of

showing that the state courts’ prejudice determination was objectively

unreasonable.

In summary, our AEDPA role is not to determine de novo whether Wood’s

counsel were ineffective or whether Wood was prejudiced. We are concerned only

with whether the state courts’ findings and conclusions—that Wood did not carry

his burden to show deficient performance or prejudice—were contrary to, or an

37
Clisby’s trial counsel presented an expert who told the sentencer that he was unable to
locate any disorder beyond “possibly anti-social personality disorder.” Clisby, 26 F.3d at 1055
(quotation marks omitted). The post-conviction mental health expert testified Clisby suffered
from three problems: (1) antisocial personality disorder; (2) borderline intellectual functioning;
and (3) chronic drug and alcohol abuse. Id.

71
unreasonable application of, clearly established federal law, or were based on an

unreasonable determination of the facts. Again, AEDPA “limits our review of the

decisions of the state courts and establishes a ‘general framework of substantial

deference’ for reviewing ‘every issue that the state courts have decided.’” Crowe

v. Hall, 490 F.3d 840, 844 (11th Cir. 2007) (citation omitted), cert. denied, __ U.S.

__, 128 S. Ct. 2053 (2008). Based on the record before us, Wood has not satisfied

AEDPA’s requirements as to his ineffective assistance claim.

VI. Conclusion

We affirm the district court’s November 20, 2006 order denying Wood’s

Atkins and Batson claims but reverse the order’s grant of the writ based on

ineffective assistance of counsel and remand with instructions to deny Wood’s

§ 2254 petition.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

72
BARKETT, Circuit Judge, concurring in part, dissenting in part:

I concur with the majority opinion’s disposition of Wood’s claims based on

Atkins v. Virginia, 536 U.S. 304 (2002), and Batson v. Kentucky, 476 U.S. 79

(1986). I must respectfully dissent, however, from the majority’s holding that

Wood is not entitled to habeas relief on his claim of ineffective assistance during

the penalty phase of his trial, because I believe that conclusion ignores specific and

direct evidence of ineffectiveness of counsel in favor of nothing but pure

speculation that the failure to investigate and present mitigating evidence was a

“strategic decision.”

No evidence of Wood’s mental retardation was ever presented to the jury.

In considering the death penalty, the jury never had the opportunity to weigh his

actions in light of his undisputed diminished mental capacity. The majority claims

that the record supports the state court’s finding that Wood’s counsel decided

against pursuing or presenting evidence of Wood’s mental impairments. The

record “evidence” upon which the majority relies, however, consists of the vague

and speculative references of one attorney, Dozier, that he was “sure” the trial

team “would have” adequately prepared for the penalty phase, despite his own

testimony that he could not recall doing anything specific given the passage of

73
time.1 On the other hand, the majority altogether disregards direct and specific

evidence to the contrary.

A fair reading of the entire record compels the conclusion that Wood’s

lawyers, in fact, did not adequately prepare for the penalty phase and their direct

testimony concedes as much. Wood’s counsel were aware that Wood suffered

from mental impairments from the very beginning of their trial preparation.

Despite their knowledge, counsel did not look into, follow up on, or further pursue

this critical source of potentially mitigating evidence. The egregious failures of

Wood’s defense counsel to investigate and develop available mitigating evidence

for the penalty phase of Wood’s capital case, as delineated below, epitomizes the

sort of deficient performance that an ineffective assistance claim exists to guard

against. Thus, I must dissent.

I. Counsel must make an informed decision regarding the investigation and
presentation of mitigating evidence

To succeed on a claim of ineffective assistance of counsel, a petitioner “must

show that counsel’s representation fell below an objective standard of

reasonableness” and must demonstrate that “any deficiencies in counsel’s

1
(See Maj. Op. at 16.) (discussing Dozier’s testimony that he was “sure” that the “trial
team” interviewed potential witnesses); (Id. at 19, 41.) (reprinting Dozier’s testimony that “we
[the trial team] would have” presented useful information from Dr. Kirkland’s report and that
though he could not recall if he personally read it, he was “sure we [the trial team] did”); (Id. at
49.) (paraphrasing Dozier’s testimony that if the trial team had identified helpful information in
Dr. Kirkland’s report, he was “sure” they “would have” used it) (emphasis added throughout).

74
performance [were] prejudicial . . . .” Strickland, 466 U.S. 668, 688, 692 (1984).

That is, a petitioner must demonstrate that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694.

With reference specifically to a lawyer’s duty to investigate, the Supreme

Court held in Strickland that:

[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.

Id. at 691. The Supreme Court has made clear that the obligation to present

specific mitigating evidence is separate and distinct from a lawyer’s obligation to

adequately investigate the background of the defendant in order to make an

informed judgment about whether certain evidence should be presented. See

Wiggins v. Smith, 539 U.S. 510, 522–23 (2003) (“[O]ur principal concern in

deciding whether [Wiggins’ lawyers] exercised ‘reasonable professional

judgmen[t]’ is not whether counsel should have presented a mitigation case.

Rather, we focus on whether the investigation supporting counsel’s decision not to

introduce mitigating evidence of Wiggins’ background was itself reasonable.”

(emphasis in original) (citation omitted)).

75
 This circuit has repeatedly held that “in preparing for a death penalty case,

‘a[n] attorney has a duty to conduct a reasonable investigation, including an

investigation of the defendant’s background, for possible mitigating evidence,’”

Dobbs v. Turpin, 142 F.3d 1383, 1387 (11th Cir. 1998) (quoting Porter v.

Singletary, 14 F.3d 554, 557 (11th Cir. 1994)) (brackets in original), and that “[t]he

failure to do so may render counsel’s assistance ineffective.” Id. (quoting Baxter v.

Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995)). We have also “reject[ed] the

notion that a ‘strategic’ decision can be reasonable when the attorney has failed to

investigate his options and [to] make a reasonable choice between them.” Dobbs,

142 F.3d at 1388 (quoting Baxter, 45 F.3d at 1514; citing Horton v. Zant, 941 F.2d

1449, 1462 (11th Cir. 1991)). Simply put, “strategic decisions . . . ‘must flow from

an informed decision.’” Dobbs, 142 F.3d at 1388 (quoting Harris v. Dugger, 874

F.2d 756, 763 (11th Cir. 1989)). No such strategic decisions could possibly have

been made in this case because counsel had failed to adequately investigate the

available mitigating evidence.

II. The record reflects totally inadequate penalty phase preparation

A careful review of the record clearly demonstrates the appalling lack of

preparation that went into the penalty phase of Wood’s trial. Cary Dozier, Frank

Ralph and Ken Trotter were court-appointed attorneys representing Wood. At the

76
time, Trotter had been practicing law for only about five months.2 Ralph testified

that Trotter “was very inexperienced. He was very nervous about this whole case.

And it was quite evident just talking with him how troubled he was by it.”

Despite Trotter’s lack of experience, it is undisputed by the direct evidence

in the record that he was given primary responsibility for the penalty phase of

Wood’s trial by the two more experienced attorneys.3 Ralph testified that though it

was “not entirely correct” that he and Dozier had “no involvement in the

preparation for or investigation of the penalty phase,” he added simply, “I

remember that we met and talked about it.” Other than this vague reference to

having “talked about” the penalty phase, Ralph’s overwhelming testimony is that

Trotter alone handled the penalty phase of Wood’s trial, and that Ralph had

2
Although Alabama law required attorneys appointed in capital cases to have at least five
years of experience in criminal law, only Ralph and Dozier had the requisite experience. See
Ala. Code § 13A-5-54 (1994) (“Each person indicted for an offense punishable under the
provisions of this article who is not able to afford legal counsel must be provided with court
appointed counsel having no less than five years’ prior experience in the active practice of
criminal law.”). While I do not address—as the issue was not raised—whether designating an
entire portion of the trial to an attorney who lacks the requisite five years of experience comports
with the requirements of Alabama Code § 13A-5-54, the statute highlights the legitimate
concerns that accompany the appointment of an inexperienced attorney as counsel in a capital
case.
3
In footnote 11 of its opinion, the majority claims that Dozier and Ralph were both
present and active in the penalty phase. But merely being present and active—by raising an
occasional objection during the proceedings—is insufficient to demonstrate that Dozier and
Ralph adequately supervised or assisted Trotter. Moreover, the assertion does not address
counsel’s collective failure to adequately investigate Wood’s mental health status and
background or to otherwise prepare for the penalty phase.

77
nothing to do with it. Ralph was clear that counsel “decided Ken Trotter would

handle [the penalty phase] . . . that that was going to be his responsibility.”

According to Ralph, “Ken Trotter . . . handl[ed] the entire matter.”

Similarly, although Dozier claimed that all three lawyers “participated” in

the various aspects of Wood’s case, he could not specify any particular matter that

he handled with respect to the penalty phase. Moreover, Dozier’s statements

pertaining to any “participation” by all three lawyers appear to be primarily

directed to the guilt phase, and not the penalty phase. Dozier testified that

“[Trotter] did basically most of the motions . . . [Dozier] and Frank [Ralph] and

Trotter put them all together, and we basically let Trotter handle the sentencing

part of it.” The record reflects, however, that there were no written motions filed

during the penalty phase of the trial.4 Dozier did not recall whether he handled any

of the witnesses for the penalty phase or whether he read Dr. Kirkland’s report

before trial or met with Dr. Kirkland, but he was “sure Frank [Ralph] or Trotter or

some of us did.” Dozier could not remember counsel’s penalty phase strategy,

noting that the “[o]nly thing [he] remember[ed] was something about [Wood’s]

childhood, and [he did not] recall what it was all about.” Moreover, Dozier did not

4
Trotter prepared written motions only for the guilt/innocence phase of trial. Indeed,
according to Ralph: “It seems like prior to the actual trial preparation we had a series of motions
that I think Mr. Trotter prepared. We had a hearing on that. We all participated in that.”

78
recall even having considered introducing evidence at the penalty phase based on

Dr. Kirkland’s findings. Dozier reiterated that it was “Trotter [who] handled the

aggravating circumstances as far as the sentencing process went [and that]

[b]asically [he (Dozier)] and Mr. Ralph were basically the trial lawyers.” Dozier

again stated that he and Ralph “basically designated Trotter to do the sentencing

aspect of it.”

Trotter likewise specifically verified that he had been in charge of the

penalty phase.5 According to Trotter’s testimony at the Rule 32 hearing, originally

Dozier was supposed to be the principal attorney who was to “oversee all phases of

the trial, including both the penalty . . . and the guilt or innocence adjudication,”

but Dozier ultimately focused on the guilt/innocence phase, and, at the last minute,

turned over to Trotter all of the responsibility for preparing and presenting the

penalty phase. It was Trotter’s understanding “that Mr. Ralph was going to

conduct the penalty phase,” however, “shortly before the trial . . . a decision was

made . . . that [Trotter] would represent Mr. Wood during the penalty phase in the

courtroom” instead. Trotter also testified that as the penalty phase approached, he

“felt like [he] was working a lot of it independently and trying to call as much as

5
In footnote 11 of its opinion, the majority mistakenly suggests that Trotter’s testimony
conclusively demonstrates that he was given sufficient assistance or supervision; however,
excerpts from the record—which follow the accompanying text above—show otherwise.

79
[he] could to Mr. Ralph and Mr. Dozier to get their feedback on stuff. But to a

certain extent, [he] was having to do a lot of work independently, more so than [he]

thought when [he] initially accepted the appointment . . . .” A couple of months

before trial, Trotter expressed his frustration at the lack of supervision and

guidance he was receiving in a letter to Kevin Doyle, a capital defense attorney

from the Southern Poverty Law Center, stating, “I have been stressed out over this

case and don’t have anyone with whom to discuss the case, including the two other

attorneys.” (emphasis added). Thus, there is little indication in the record that

either Ralph or Dozier offered any guidance to Trotter—a lawyer with only a few

months of legal experience—on how to proceed in the penalty phase of a capital

case.

Although the majority attempts to portray Dozier as “lead counsel”

throughout both the guilt and penalty phase, this is merely the majority’s

characterization of his role. (Maj. Op. at 15, 18, 20, 26.) None of Wood’s counsel

specifically testified that Dozier was “lead counsel,” and in fact testified directly to

the contrary as to the penalty phase. Trotter specifically testified that Dozier

decided that Trotter was to “assist primarily with the penalty phase—preparation of

the penalty phase” but that ultimately Trotter was to replace Ralph as the person

“primarily responsible for the penalty phase.”

80
 As soon as the guilt/innocence phase ended and Wood was convicted, the

trial judge announced that the penalty phase would begin the following day.

Trotter later testified that, at the time, he “didn’t think [they] were actually

prepared to move forward with the penalty phase of the trial when [they did].”6

Nonetheless, neither Trotter nor the other two attorneys moved for a continuance in

order to afford them time to prepare adequately for the penalty phase. The next

day, when the penalty phase before the jury was about to begin, Trotter, for the

first time, asked the trial court for a psychological evaluation of Wood.

Although Dr. Kirkland had prepared a psychological report four months

earlier, primarily to assess Wood’s competency for trial, Trotter explained to the

court that there had been no follow-up.7 Dr. Kirkland had found that Wood was

competent to stand trial and was able to appreciate the criminality of his acts at the

time of the offense. However, his report also noted that Wood was “reading on

6
The majority argues that while Trotter did not initially think that they were prepared to
proceed with the penalty phase, he consulted with Ralph and Dozier, and their concerns were
alleviated. (Maj. Op. at 22.) While Ralph and Dozier’s concerns may have been alleviated,
Trotter never testified that he was comfortable proceeding. Further, the majority’s contention
that Dozier made the decision that no further evaluation was needed based on Dr. Kirkland’s
report is directly undercut by Trotter’s request for additional psychological evaluation prior to
sentencing. If Dozier did make such a decision, it then only follows that Trotter must have been
extremely uncomfortable with the decision, in order to disregard it in making the request.
7
The majority claims that this psychological evaluation was sufficient to investigate any
mitigating evidence based on Wood’s mental health. However, “[o]btaining competency
evaluations from mental health experts for guilt phase purposes does not discharge counsel’s
duty to consult such experts for the penalty phase because the considerations involved are very
different in the two phases.” Belmontes v. Ayers, 529 F.3d 834, 859 (9th Cir. 2008).

81
less than a 3rd grade level,” “could not use abstraction skills much beyond the low

average range of intellect,” and was “functioning, at most, in the borderline range

of intellectual functioning.” Despite this information, counsel conducted no

further investigation regarding Wood’s mental impairments with Dr. Kirkland or

anyone else.8

In requesting further psychological testing of Wood immediately before

sentencing, Trotter told the court what should have been obvious to any reasonable

lawyer upon initially reading the report: that Dr. Kirkland “indicates that the

defendant may have psychological problems that need further assessment.”

Indeed, Trotter conceded that even though the report had been completed months

earlier, “[n]o further investigation ha[d] been done, psychologically, of those

points.” Knowing that there had been a failure to pursue available mitigating

evidence, and that it was too late to present it to the jury, Trotter had to ask, at that

late date, that “prior to any final sentencing by the Court . . . there be further

psychological evaluation done of the defendant, although that won’t be admissible

8
Contrary to the majority’s characterization in footnote 9, my position does not rely on a
belief that Wood’s counsel were completely ignorant of his mental status. Instead, it focuses on
the failure of Wood’s counsel to further investigate and develop mitigating evidence having seen
Dr. Kirkland’s report that made reference to Wood’s “borderline range of intellectual
functioning.”

82
to this jury, prior to the judge rendering his final verdict.”9 The judge indicated

that he would “consider that [request] after we finish today.” Remarkably,

however, neither Trotter nor Ralph nor Dozier followed up with the request. The

record reflects that the jury returned the verdict recommending the death penalty

that same day, and that neither the judge nor defense counsel raised the issue of the

psychological evaluation again.

Moreover, despite counsel’s knowledge that Wood was mentally impaired,

Trotter never asked any of the family witnesses questions regarding Wood’s

mental impairments when he called them to testify, nor did Trotter ever try to

directly contact Wood’s former teachers. In addition, though Trotter had issued a

subpoena for Wood’s school records, no records were ever produced, and,

amazingly again, counsel never followed up or sought legal action to enforce the

subpoena. Discovering at the last minute that no records had ever been produced,

Trotter once again had to make an untimely request to the judge. Just before the

jury was seated for the penalty phase, Trotter, for the first time, brought to the

judge’s attention that he had not received the records to which he was entitled from

9
Even had Trotter acquired and presented this evidence to the judge, his failure to
investigate and present this evidence to the jury would have still rendered him ineffective for the
penalty phase. We have held that the “jury is too important, and the right to introduce all
mitigating evidence is too essential, to permit a judge to correct so egregious a failure by counsel
to investigate, obtain, or present powerful mitigating evidence to the sentencing jury.” Brownlee
v. Haley, 306 F.3d 1043, 1079 (11th Cir. 2002).

83
the “Board of Pardons and Paroles and the various state prisons in which Mr.

Wood may have been incarcerated,” as well as records from the “Department of

Human Resources.” Though the request for these documents had been granted

some two months earlier, it was not until the morning the penalty phase was to

begin that Trotter finally brought this to the court’s attention. None of Wood’s

lawyers ever saw these documents or ever considered the mitigating evidence they

contained.

Had Trotter adequately investigated the references in Dr. Kirkland’s report,

or followed up on the school records, or even talked to Wood’s family and teachers

about his mental retardation, this important aspect of Wood’s life could have been

presented to the jury. None of this, or any other, evidence of Wood’s mental

impairments was ever presented to the jury. Moreover, none of this evidence could

possibly have had any adverse effect on the jury’s consideration of Wood’s

appropriate penalty.

Shortly before the sentencing hearing in front of the judge was to begin,

Trotter wrote to his co-counsel reiterating that an independent psychological

evaluation should be conducted, “even if that means asking for a postponement of

the sentencing hearing [before the judge].” Notwithstanding his last-minute

concerns, however, Trotter did not seek a continuance after his co-counsel

84
expressed a belief that the judge would not likely grant one. Moreover, Trotter

again failed to follow up on his request for a psychological evaluation to be, at

least, presented to the judge.

In a last-ditch attempt, and having not pursued the psychological evaluation

he believed to be necessary, Trotter argued to the judge at the sentencing hearing

that the court should consider Dr. Kirkland’s report as evidence of Wood’s mental

impairments for mitigation purposes—even though the report had been prepared

primarily to evaluate Wood’s mental state at the time of the crime and his

competency to stand trial. He stated: “[A]s reported in the psychological report by

Dr. Kirkland, [Wood] cannot use abstraction skills much beyond the low average

range of intellect, and that he is at most functioning in the borderline range of

intellectual functioning . . . would mitigate any aggravating circumstances in this

case . . . .” He presented no other evidence to support Dr. Kirkland’s statements.

Simply put, the weight of the evidence in the record demonstrates that

Trotter, an inexperienced and overwhelmed attorney, was given primary

responsibility for investigating and preparing for the penalty phase of Wood’s trial,

and he was not given any significant assistance from the rest of the trial team. He

realized too late what any reasonably prepared attorney would have known: that

evidence of Wood’s mental impairments could have served as mitigating evidence

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and deserved investigation so that it could properly be presented before sentencing.

Due to Trotter’s inexperience, and to Ralph and Dozier’s lack of participation in

preparation for the penalty phase, no investigation of Wood’s mental retardation

was conducted at all, and that alone is the reason it was never presented to the jury

in mitigation. There can be no other reasonable reading of this record.

Counsel’s failure to investigate and present the critical evidence of Wood’s

mental impairments to the jury certainly “fell short of the standards for capital

defense work articulated by the American Bar Association,” Wiggins, 539 U.S. at

524, that prevailed at the time of Wood’s trial. See generally ABA Guidelines for

the Appointment and Performance of Counsel in Death Penalty Cases at 11.4.1(C),

8.1 (commentary) (1989) (requiring counsel to engage in sufficient “efforts to

discover all reasonably available mitigating evidence,” and to “conduct a thorough

investigation of the defendant’s life history and background.” (emphasis added)).

Their deficient representation violated Wood’s Sixth Amendment right to

counsel.10 See Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir. 1988) (finding

10
The majority opinion finds our decision in Hubbard v. Haley, 317 F.3d 1245 (11th Cir.
2003), to be particularly instructive as to “why it was not deficient performance for counsel not
to present evidence of Wood’s low IQ.” (Maj. Op. at 54–55.) That case is completely
inapplicable. The performance of Hubbard’s counsel is distinguishable from the performance of
counsel here because Hubbard’s defense strategy, even at sentencing, was to maintain that he
was actually innocent of the crime. Hubbard, 317 F.3d at 1260. Here, defense counsel’s
strategy during sentencing was to put on some evidence of mitigation; counsel simply failed to
sufficiently investigate the sources that may have provided them with evidence of Wood’s
mental impairments. Moreover, Hubbard was unable to identify any witnesses who may have

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ineffective assistance where, despite being put on notice of a possible mental

illness, counsel “elected to pursue his investigation into [the defendant’s] mental

condition no further” and “conducted no inquiry whatsoever into the possibility of

presenting evidence of [the defendant’s] mental history and condition in mitigation

of punishment”). Given this record, I agree with the district court’s finding that the

state court’s denial of Wood’s claim of ineffective assistance of counsel involved

an unreasonable application of Strickland.

III. No informed strategic decision was ever made to exclude evidence of
mental retardation

Given the totally inadequate penalty phase preparation that the record

reveals, as delineated above, it is clear that Wood’s counsel’s failure to investigate

or present mitigating evidence of Wood’s mental impairments resulted from their

sheer neglect. The majority’s attempt to characterize their failure as a strategic

decision “resembles more a post hoc rationalization of counsel’s conduct than an

accurate description of their deliberations prior to sentencing.” Wiggins, 539 U.S.

at 526-27. There is no basis in this record to conclude that the failure to investigate

was, or could have been, a reasonable strategic decision made by Wood’s

been able to testify on his behalf at sentencing. Id. Wood, on the other hand, was able to
identify both teachers and family members who would have been able to testify as to his mental
impairments. Finally, Hubbard’s attorneys still managed to argue mitigation evidence to the jury
based on what was in the Bryce Hospital records. Id. at 1260 n.25. Wood’s jury never even
knew a psychological evaluation existed.

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counsel.11

First, the majority portrays Dozier as the primary decision-maker throughout

trial, including during the penalty phase preparations. The majority claims that as

“lead counsel,” Dozier was responsible for deciding against presenting any

mitigating evidence of Wood’s mental impairments. However, as more fully

explained above, Dozier confirmed that he and Ralph “basically designated Trotter

to do the sentencing aspect of [the trial].” The record is clear that Dozier was not

the “lead counsel” in charge of penalty phase preparations.

Second, the record demonstrates that none of Wood’s counsel, including

Dozier, made a reasonable strategic decision not to investigate or present evidence

of his mental impairments. To the contrary, as also explained above, Trotter tried

to obtain and present such testimony but could not because he tried too late. Trotter

entreated the trial judge to, “prior to any final sentencing by the Court[,] . . .

[allow] further psychological evaluation of the defendant, although that won’t be

admissible to this jury, prior to the judge rendering his final verdict.” Further,

11
The majority cites to Trotter’s testimony that Dozier reviewed Dr. Kirkland’s report
and that Dozier determined that no further evaluators were necessary. (Maj. Op. at 18-19, 26,
58.) Even if it were true that Dozier decided that it was unnecessary to further investigate
Wood’s mental health, such a decision would have been inherently unreasonable because Dozier
failed to adequately investigate Wood’s mental retardation before making that determination,
especially in light of Trotter’s repeated concerns regarding his readings that psychological
evaluations were a source of mitigating evidence in death penalty cases. See Dobbs, 142 F.3d at
1388.

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Trotter specifically stressed to the judge, as mitigating evidence, Dr. Kirkland’s

conclusion that Wood could not “use abstraction skills much beyond the low

average range of intellect, and that he [was] at most functioning in the borderline

range of intellectual functioning.” Trotter’s belated attempts to argue that Wood’s

mental impairments should be considered as mitigating evidence directly

contradict the finding that Wood’s counsel made a decision not to present mental

impairment evidence during the penalty phase. Rather, Trotter’s efforts prove that

counsel hoped to do just that.12

Finally, even if Wood’s counsel had decided not to pursue evidence of his

mental impairments, such a decision would have been unreasonable given their

absolute lack of investigation. See Dobbs, 142 F.3d at 1388 (“[We] reject[] the

notion that a ‘strategic’ decision can be reasonable when the attorney has failed to

investigate his options and [to] make a reasonable choice between them.”);

Belmontes, 529 F.3d at 857 (“[A] decision not to present a particular defense or not

to offer particular mitigating evidence is unreasonable unless counsel has explored

the issue sufficiently to discover the facts that might be relevant to his making an

12
While state court findings that are supported by the record are due deference under
AEDPA, we may not defer to them where there is clear and convincing evidence which indicates
that the state court’s findings amount to “an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(2). An unwillingness
to turn a blind eye to evidence in this case that demonstrates the state court’s findings were
unreasonable is not the same as conducting a de novo review.

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informed decision.”). Defense counsel’s failure to investigate and/or introduce

mitigating evidence of Wood’s mental impairments “resulted from inattention, not

reasoned strategic judgment.” Wiggins, 539 U.S. at 526.

IV. The failure to investigate and present mental mitigating evidence was
prejudicial

I agree with the district court that Wood was prejudiced by counsel’s

ineffectiveness. In assessing the prejudice caused by counsel’s ineffective

assistance at the penalty phase of a capital trial, we reweigh the evidence in

aggravation against the totality of available mitigating evidence, which includes

both the evidence introduced at trial and the evidence introduced in the habeas

proceedings. Williams v. Taylor, 529 U.S. 362, 397–98 (2000); Wiggins, 539 U.S.

at 534.

Given the nature of the State’s evidence in aggravation of Wood’s offense,

as described in the majority opinion, evidence of Wood’s mental deficiencies was

essential to mitigation because it would have offered the necessary context for the

jury to have properly evaluated Wood’s aberrant behavior before recommending a

sentence. Indeed, Wood’s “cognitive and behavioral impairments” could have

suggested to the jury that, though legally culpable, he was “less morally culpable”

in terms of the death penalty, because of his “diminished ability to understand and

process information, to learn from experience, to engage in logical reasoning, or to

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control impulses.” Atkins, 536 U.S. at 320. As in Williams, “the reality that

[Wood] was borderline mentally retarded, might well have influenced the jury’s

appraisal of his moral culpability.” 529 U.S. at 398 (citations and internal

quotations omitted). Indeed, evidence of mental impairments “is relevant because

of the belief, long held by this society, that defendants who commit criminal acts

that are attributable to a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no such excuse.”

California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). We

have also recognized that “[o]ne can be competent to stand trial and yet suffer from

mental health problems that the sentencing jury and judge should have had an

opportunity to consider.” Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.

1991).13

However, instead of presenting such evidence, Trotter’s penalty phase case

consisted of testimony from three of Wood’s family members—Wood’s father and

two of his sisters—whose testimony made no mention of Wood’s mental

impairments and amounted to little more than a plea for juror sympathy. At the

13
In footnote 32, the majority suggests that I fail to recognize that the state court found
that Wood is not mentally retarded. This is incorrect. Rather, I recognize that Wood was found
to not be mentally retarded for the purposes of Atkins. The majority apparently labors under the
misapprehension that the state court’s finding that Wood is not mentally retarded for the
purposes of Atkins means that evidence of Wood’s mental impairments, which were not
disputed by anyone, could not have served as mitigating evidence.

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end of the one-day penalty phase, the jury recommended the death penalty by a

vote of ten to two. In the subsequent sentencing hearing, the judge found that the

State had proven three aggravating circumstances and that there were no mitigating

circumstances, and sentenced Wood to death by electrocution.

At the Rule 32 hearing, Trotter admitted candidly, “I would like to have

done more. I wished I could have done more. And I recall that at the penalty

phase the verdict was ten to two. And I felt like if I could have just done a little

more that maybe it could have been nine to three and that that would have been

enough. And I regret that whatever it was to require that little more wasn’t there.”

Moreover, Ralph testified, “I don’t think that Trotter . . . brought out enough of

Wood’s background through enough witnesses of the type of upbringing that he

had had . . . . I felt like there were more circumstances in his background that were

potentially mitigating that were not explored . . . .” Ralph further testified that the

evidence presented at the penalty phase “seemed inadequate given the

circumstances.” Despite these observations, neither Ralph nor Dozier sought to

introduce any evidence in addition to what Trotter presented.

On this record, I agree with the district court that there is a reasonable

probability that the outcome of Wood’s penalty phase would have been different

had Wood’s lawyers rendered effective assistance of counsel. In addition to any

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mental health experts that Wood’s counsel might have presented, counsel could

have called Wood’s teachers, who testified at the Rule 32 hearing freely and

without subpoena.14 Janet Penn would have testified, as she did at the Rule 32

hearing, that Wood was a student in her special education class for two years, that

all of her students had low IQ scores, and that Wood’s IQ was in the “middle to

low” range in comparison to the other students in her class. Penn would have

testified also that all of the special education students, regardless of age or grade

level, were placed in one room in a basement; the lighting was barely adequate; the

room would flood when it rained a lot; and the students were known around school

as the “moles” that “lived in a mole hole.” Hilda Maddox, another of Wood’s

teachers who testified at the Rule 32 hearing, would have explained that Wood’s

IQ was probably “low to mid 60s,” that Wood was “educable mentally retarded or

trainable mentally retarded,” and that among the students so classified, Wood

ranked in the “middle range.” The jury would have been presented with testimony

that Wood—even today—can read only at the third grade level and can “not use

abstraction skills much beyond the low average range of intellect.” Though this

information was all readily available, Trotter failed to investigate any of it in

14
Wood’s teachers confirmed at the Rule 32 hearing that had they been contacted, they
would have agreed to speak with Wood’s counsel and to testify regarding Wood’s mental
retardation and the conditions at Wood’s school.

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preparation for the penalty phase or to present it to the jury.

The majority claims that Wood was not prejudiced by his counsel’s failure

to call Dr. Kirkland as a witness or introduce Dr. Kirkland’s report because doing

so would have opened the door to the admission of potentially damaging content in

the report, namely Wood’s denial that he had been drinking on the day of the

offense, a list of Wood’s prior arrests, and the details of Wood’s prior violent

felony conviction. (Maj. Op. at 52–53, 64–68.) This argument is purely

speculative, and it is inapposite because it does not address Wood’s claim that his

counsel failed to even investigate his mental deficiencies once those deficiencies

had been discovered. The discharge of that duty could have led counsel to

evidence which would not have had any detrimental effect, such as the testimony

of his teachers. Moreover, had counsel properly investigated, they would have

been able to assess the admissibility of Dr. Kirkland’s testimony in light of the

testimony of other witnesses or existing law pertaining to the admission of

evidence at that time.15 The likelihood that counsel could have put on the

15
Specifically, evidence of Wood’s past felony may have been viewed as cumulative
evidence since the State introduced a certified copy of Wood’s prior conviction for first-degree
assault and the Pardons and Parole clerk testified that Wood was on parole when he committed
the murder. Alternatively, the trial court may have ruled to exclude Dr. Kirkland’s testimony
about Wood’s past offenses on the basis that it would be unduly prejudicial, just as it did when
the State attempted to call Barbara Siler, the victim in Wood’s prior felony assault conviction, to
testify at sentencing.
The majority also references nineteen prior arrests between 1981 and 1984 which Dr.
Kirkland mentions in his report as potentially damaging evidence. However, many of these

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mitigating evidence without introducing the damaging aspects of Dr. Kirkland’s

potential testimony undermines the validity of any decision not to even investigate

the critical portions of his report on this basis.

The majority opinion also suggests that because Wood was in special

education and mentally impaired, the jury would have been less likely to believe

that he dropped out of school to support his family. (Maj. Op. at 53, 67–68.)

Assuming that a jury would have used evidence of Wood’s mental impairments

against him directly contravenes the Supreme Court and Eleventh Circuit cases that

have consistently held that diminished mental capacity may suggest to a jury that a

defendant is in fact “less morally culpable,” and that evidence of even mild

retardation is mitigating evidence that should be investigated and presented to the

jury. See Atkins, 536 U.S. at 306–07, 317–18; Cunningham v. Zant, 928 F.2d

1006, 1017–19 (11th Cir. 1991).

The trial court in Wood’s case found that there were no mitigating factors to

balance against the aggravating factors. In a case such as this, where evidence of

arrests never resulted in convictions and the existing law pertaining to admission of such
evidence was favorable to Wood. For example, see U.S. v. Eubanks, 876 F.2d 1514, 1516–17
(11th Cir. 1989) (inappropriate for prosecutor to question defendant about prior arrests that did
not result in convictions); U.S. v. Lay, 644 F.2d 1087, 1091 (5th Cir. 1981) (improper for
prosecutor to question defendant about prior arrest without conviction); U.S. v. Labarbera, 581
F.2d 107, 108–09 (5th Cir. 1978)(mere arrest without conviction for any offense inadmissible to
show general lack of credibility); U.S. v. Hodnett, 537 F.2d 828, 829 (5th Cir. 1976) (same);
U.S. v. Garcia, 531 F.2d 1303, 1306–07 (5th Cir. 1976) (same).

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Wood’s mental impairments could have mitigated his sentence, counsel’s failure to

present it was a fatal “breakdown in the adversarial process,” Collier v. Turpin, 177

F.3d 1184, 1204 (11th Cir. 1999), which must undermine our confidence in the

application of the death penalty in this case. Although the nature of the crime was

serious, it was not so heinous as to foreclose the possibility that a reasonable jury

might have returned a different sentence had they been presented with the

substantial mitigating evidence of Wood’s mental status, which is discussed above.

See, e.g., Rompilla v. Beard, 545 U.S. 374, 393 (2005) (finding prejudice where

defense counsel failed to present mitigating evidence of the defendant’s abusive

childhood and mental health issues in case where the defendant repeatedly stabbed

the victim and set him on fire). Any other suggestion not only impermissibly

abrogates the critical role of defense counsel by relieving them altogether of any

responsibility to present mitigating evidence, but it also usurps the role of the jury

by condemning to death all those charged with particular crimes, regardless of their

individual circumstances, in direct contravention of both Supreme Court and

Eleventh Circuit precedent. See, e.g., Kansas v. Marsh, 548 U.S. 163, 175 (2006)

(“[O]ur precedents . . . oblige sentencers to consider [mitigating evidence] in

determining the appropriate sentence.” (emphasis added)); Horton v. Zant, 941

F.2d 1449, 1462 (11th Cir. 1991) (“Mitigating evidence, when available, is

96
appropriate in every case where the defendant is placed in jeopardy of receiving

the death penalty.” (emphasis added)).

Finally, I note that even in the absence of any mitigating evidence of mental

impairments, the jury vote recommending the death penalty was ten to two, which

is the minimum required to recommend a sentence of death under Alabama law.

See Ala. Code § 13A-5-46(f).16 Thus, in light of the compelling available

mitigating evidence in this case, coupled with the narrow margin by which the jury

rendered its recommendation of death, “there is a reasonable probability that the

result of the proceeding would have been different,” Brownlee, 306 F.3d at 1069

(internal quotations and citations omitted), had counsel performed effectively.

V. Conclusion

In sum, I agree with the district court that there was clear evidence available

that Wood “suffers some of the same limitations of reasoning, understanding, and

impulse control as those described by the Supreme Court in Atkins. [Thus,

c]ounsel’s failure to investigate this issue at all or to present any of this evidence

seriously undermines our confidence in the application of the death sentence.”

16
Alabama Code § 13A-5-46(f) provides:

“The decision of the jury to return an advisory verdict recommending a sentence of life
imprisonment without parole must be based on a vote of a majority of the jurors. The
decision of the jury to recommend a sentence of death must be based on a vote of at least
10 jurors. The verdict of the jury must be in writing and must specify the vote.”

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Brownlee, 306 F.3d at 1073. As in Wiggins, Wood was undoubtedly prejudiced by

Trotter’s “halfhearted mitigation case.” 539 U.S. at 526. For the foregoing

reasons, I agree with the district court’s finding that the state court’s application of

Strickland to the facts of this case involved an unreasonable application of clearly

established federal law.

98