Bell v. Thompson

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BELL, WARDEN v. THOMPSON

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

No. 04–514. Argued April 26, 2005—Decided June 27, 2005
After respondent Thompson was convicted of murder and sentenced to
death, Tennessee state courts denied postconviction relief on his
claim that his trial counsel had been ineffective for failing to ade-
quately investigate his mental health. His federal habeas attorneys
subsequently retained psychologist Dr. Sultan, whose report and
deposition contended that Thompson suffered from serious mental
illness at the time of his offense. The District Court dismissed the
petition, but apparently Thompson’s habeas counsel had failed to in-
clude Sultan’s deposition and report in the record. Upholding the
dismissal, the Sixth Circuit, inter alia, found no ineffective assistance
and did not discuss Sultan’s report and deposition in detail. That
court later denied rehearing, but stayed issuance of its mandate
pending disposition of Thompson’s certiorari petition. After this
Court denied certiorari on December 1, 2003, the Sixth Circuit stayed
its mandate again, pending disposition of a petition for rehearing,
which this Court denied on January 20, 2004. A copy of that order
was filed with the Sixth Circuit on January 23, but the court did not
issue its mandate. The State set Thompson’s execution date, and
state and federal proceedings began on his competency to be exe-
cuted. Competency proceedings were pending in the Federal District
Court on June 23, 2004, when the Sixth Circuit issued an amended
opinion in the federal habeas case, vacating the District Court’s ha-
beas judgment and remanding the case for an evidentiary hearing on
the ineffective-assistance claim. The Sixth Circuit supplemented the
record on appeal with Sultan’s deposition and explained that its au-
thority to issue an amended opinion five months after this Court de-
nied rehearing was based on its inherent power to reconsider an opin-
ion before issuance of the mandate.
2 BELL v. THOMPSON

Syllabus

Held: Assuming that Federal Rule of Appellate Procedure 41 authorizes
a stay of a mandate following a denial of certiorari and that a court
may stay the mandate without entering an order, the Sixth Circuit’s
decision to do so here was an abuse of discretion. Pp. 6–19.
(a) This Court need not decide the scope of the court of appeals’
Rule 41 authority to withhold a mandate in order to resolve this case.
Pp. 6–9.
(b) Prominent among the reasons warranting the result here is
that the Sixth Circuit did not release its amended opinion for more
than five months after this Court denied rehearing. The consequence
of delay for the State’s criminal justice system was compounded by
the Sixth Circuit’s failure to issue an order or otherwise give notice to
the parties that it was reconsidering its earlier opinion. The express
terms of the Sixth Circuit’s stay state that the mandate would be
stayed until this Court acted on the rehearing petition. Thus, once
rehearing was denied, the stay dissolved by operation of law. Ten-
nessee, relying on the Sixth Circuit’s earlier orders and this Court’s
certiorari and rehearing denials could assume that the mandate
would issue, especially since Thompson sought no additional stay and
the Sixth Circuit gave no indication that it might be revisting its ear-
lier decision. The latter point is important, for it is an open question
whether a court may exercise its Rule 41(b) authority to extend the
time to issue a mandate through mere inaction. Without a formal
docket entry neither the parties nor this Court had, or have, any way
to know whether the Sixth Circuit had stayed the mandate or simply
made a clerical mistake. That court could have spared the parties
and state judicial system considerable time and resources had it noti-
fied them that it was reviewing its decision. The scheduling of
Thompson’s execution and the resulting competency proceedings
were steps taken in reliance on the assumption that the federal ha-
beas case was final. That assumption was all the more reasonable
because the delay in issuing the mandate took place after this Court
had denied certiorari, which usually signals the end of litigation. See
Fed. Rule App. Proc. 41(d)(2)(D). The fact that the Sixth Circuit had
the opportunity at the rehearing stage to consider the same argu-
ments it eventually adopted in its amended opinion is yet another
factor supporting the determination here. A review of the Sultan
deposition also reinforces this conclusion. While the evidence would
have been relevant to the District Court’s analysis, it is not of such a
character as to warrant the Sixth Circuit’s extraordinary departure
from standard procedures. Finally, by withholding its mandate for
months—based on evidence supporting only an arguable constitu-
tional claim—while the State prepared to carry out Thompson’s sen-
tence, the Sixth Circuit did not accord the appropriate level of respect
 Cite as: 545 U. S. ____ (2005) 3

Syllabus

to the State’s judgment that Thompson’s crimes merit the ultimate
punishment. See Calderon v. Thompson, 523 U. S. 538, 554–557.
Pp. 9–19.
373 F. 3d 688, reversed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and O’CONNOR, SCALIA, and THOMAS, JJ., joined. BREYER, J., filed
a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ.,
joined.
 Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 04–514
_________________

RICKY BELL, WARDEN, PETITIONER v. GREGORY
THOMPSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 27, 2005]

JUSTICE KENNEDY delivered the opinion of the Court.
This case requires us to consider whether, after we had
denied certiorari and a petition for rehearing, the Court of
Appeals had the power to withhold its mandate for more
than five months without entering a formal order. We
hold that, even assuming a court may withhold its man-
date after the denial of certiorari in some cases, the Court
of Appeals’ decision to do so here was an abuse of
discretion.
I
In 1985, Gregory Thompson and Joanna McNamara
abducted Brenda Blanton Lane from a store parking lot in
Shelbyville, Tennessee. After forcing Lane to drive them
to a remote location, Thompson stabbed her to death.
Thompson offered no evidence during the guilt phase of
trial and was convicted by a jury of first-degree murder.
Thompson’s defense attorneys concentrated their efforts
on persuading the sentencing jury that Thompson’s posi-
tive qualities and capacity to adjust to prison life provided
good reasons for not imposing the death penalty. Before
trial, Thompson’s counsel had explored the issue of his
2 BELL v. THOMPSON

Opinion of the Court

mental condition. The trial judge referred Thompson to a
state-run mental health facility for a 30-day evaluation.
The resulting report indicated that Thompson was compe-
tent at the time of the offense and at the time of the ex-
amination. The defense team retained their own expert,
Dr. George Copple, a clinical psychologist. At sentencing
Copple testified that Thompson was remorseful and still
had the ability to work and contribute while in prison.
Thompson presented the character testimony of a number
of witnesses, including former high school teachers, his
grandparents, and two siblings. Arlene Cajulao, Thomp-
son’s girlfriend while he was stationed with the Navy in
Hawaii, also testified on his behalf. She claimed that
Thompson’s behavior became erratic after he suffered
head injuries during an attack by three of his fellow ser-
vicemen. In rebuttal the State called Dr. Glenn Watson, a
clinical psychologist who led the pretrial evaluation of
Thompson’s competence. Watson testified that his exami-
nation of Thompson revealed no significant mental illness.
The jury sentenced Thompson to death. His conviction
and sentence were affirmed on direct review. State v.
Thompson, 768 S. W. 2d 239 (Tenn. 1989), cert. denied,
497 U. S. 1031 (1990).
In his state postconviction petition, Thompson claimed
his trial counsel had been ineffective for failing to conduct
an adequate investigation into his mental health. Thomp-
son argued that his earlier head injuries had diminished
his mental capacity and that evidence of his condition
should have been presented as mitigating evidence during
the penalty phase of trial. Under Tennessee law, mental
illness that impairs a defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law is a mitigating factor in capital
sentencing. Tenn. Code Ann. §39–2–203(j)(8) (1982) (re-
pealed); §39–13–204(j)(8) (Lexis 2003). The postconviction
court denied relief following an evidentiary hearing, and
 Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

the Tennessee Court of Criminal Appeals affirmed.
Thompson v. State, 958 S. W. 2d 156 (1997). The Tennes-
see Supreme Court denied discretionary review.
Thompson renewed his ineffective-assistance-of-counsel
claim on federal habeas. Thompson’s attorneys retained a
psychologist, Dr. Faye Sultan, to assist with the proceed-
ings. At this point, 13 years had passed since Thompson’s
conviction. Sultan examined and interviewed Thompson
three times, questioned his family members, and conducted
an extensive review of his legal, military, medical, and
prison records, App. 12, before diagnosing him as suffering
from schizoaffective disorder, bipolar type, id., at 20. She
contended that Thompson’s symptoms indicated he was
“suffering serious mental illness at the time of the 1985
offense for which he has been convicted and sentenced.
This mental illness would have substantially impaired Mr.
Thompson’s ability to conform his conduct to the require-
ments of the law.” Ibid. Sultan prepared an expert report
on Thompson’s behalf and was also deposed by the State.
In February 2000, the United States District Court for
the Eastern District of Tennessee granted the State’s
motion for summary judgment and dismissed the habeas
petition. The court held that Thompson failed to show
that the state court’s resolution of his claim rested on an
unreasonable application of Supreme Court precedent or
on an unreasonable determination of the facts in light of
the evidence presented in state court. See 28 U. S. C.
§2254(d). The District Court also stated that Thompson
had not presented “any significant probative evidence that
[he] was suffering from a significant mental disease that
should have been presented to the jury during the pun-
ishment phase as mitigation.” No. 4:98–CV006 (ED Tenn.,
Feb. 17, 2000), App. to Pet. for Cert. 270. Sultan’s deposi-
tion and report, however, had apparently not been in-
cluded in the District Court record.
While Thompson’s appeal to the Court of Appeals for the
4 BELL v. THOMPSON

Opinion of the Court

Sixth Circuit was pending, he filed a motion in the District
Court under Federal Rule of Civil Procedure 60(b) request-
ing that the court supplement the record with Sultan’s
expert report and deposition. Thompson’s habeas counsel
at the time explained that the failure to include the Sultan
evidence in the summary judgment record was an over-
sight. Thompson also asked the Court of Appeals to hold
his case in abeyance pending a ruling from the District
Court and attached the Sultan evidence in support of his
motion.
The District Court denied the Rule 60(b) motion as
untimely, and the Court of Appeals denied Thompson’s
motion to hold his appeal in abeyance. On January 9,
2003, a divided panel of the Court of Appeals affirmed the
District Court’s denial of habeas relief. 315 F. 3d 566.
The lead opinion, authored by Judge Suhrheinrich, rea-
soned that there was no ineffective assistance of counsel
because Thompson’s attorneys were aware of his head
injuries and made appropriate inquiries into his mental
fitness. Id., at 589–592. In particular, Thompson’s attor-
neys had requested that the trial court order a competency
evaluation. A team of experts at the Middle Tennessee
Mental Health Institute, a state-run facility, found “no
mental illness, mental defect, or insanity.” Id., at 589. Dr.
George Copple, the clinical psychologist retained by
Thompson’s attorneys, also “found no evidence of mental
illness.” Ibid. Judge Suhrheinrich emphasized that none
of the experts retained by Thompson since trial had of-
fered an opinion on his mental condition at the time of the
crime. Id., at 589–592. The lead opinion contained a
passing reference to Thompson’s unsuccessful Rule 60(b)
motion, but did not discuss the Sultan deposition or expert
report in any detail. Id., at 583, n. 13. Judge Moore con-
curred in the result based on Thompson’s failure to pre-
sent “evidence that his counsel knew or should have
known either that Thompson was mentally ill or that his
 Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

mental condition was deteriorating at the time of his trial
or at the time of his crime.” Id., at 595.
Thompson filed a petition for rehearing. The petition
placed substantial emphasis on the Sultan evidence, quot-
ing from both her deposition and expert report. The Court
of Appeals denied the petition for rehearing and stayed
the issuance of its mandate pending the disposition of
Thompson’s petition for certiorari.
This Court denied certiorari on December 1, 2003. 540
U. S. 1051. The following day, Thompson filed a motion in
the Court of Appeals seeking to extend the stay of man-
date pending disposition of his petition for rehearing in
this Court. The Court of Appeals granted the motion and
“ordered that the mandate be stayed to allow appellant
time to file a petition for rehearing from the denial of the
writ of certiorari, and thereafter until the Supreme Court
disposes of the case.” App. to Pet. for Cert. 348. On Janu-
ary 20, 2004, this Court denied Thompson’s petition for
rehearing. 540 U. S. 1158. A copy of the order was filed
with the Court of Appeals on January 23, 2004. The Court
of Appeals, however, did not issue its mandate.
The State, under the apparent assumption that the
federal habeas corpus proceedings had terminated, filed a
motion before the Tennessee Supreme Court requesting
that an execution date be set. The court scheduled
Thompson’s execution for August 19, 2004.
From February to June 2004, there were proceedings in
both state and federal courts related to Thompson’s pre-
sent competency to be executed under Ford v. Wainwright,
477 U. S. 399 (1986). The state courts, after considering
Sultan’s testimony (which was based in part on followup
observations after her initial 1998 examination) as well as
that of other experts, found Thompson competent to be
executed. Thompson v. State, 134 S. W. 3d 168 (Tenn.
2004). Thompson’s Ford claim was still pending before the
Federal District Court when on June 23, 2004, some seven
6 BELL v. THOMPSON

Opinion of the Court

months after this Court denied certiorari, the Court of
Appeals for the Sixth Circuit issued an amended opinion
in Thompson’s initial federal habeas case. 373 F. 3d 688.
The new decision vacated the District Court’s judgment
denying habeas relief and remanded the case for an evi-
dentiary hearing on Thompson’s ineffective-assistance-of-
counsel claim. Id., at 691–692. The Court of Appeals
relied on its equitable powers to supplement the record on
appeal with Dr. Sultan’s 1999 deposition after finding that
it was “apparently negligently omitted” and “probative of
Thompson’s mental state at the time of the crime.” Id., at
691. The court also explained its authority to issue an
amended opinion five months after this Court denied a
petition for rehearing: “[W]e rely on our inherent power to
reconsider our opinion prior to the issuance of the man-
date, which has not yet issued in this case.” Id., at 691–
692. Judge Suhrheinrich authored a lengthy separate
opinion concurring in part and dissenting in part, which
explained that his chambers initiated the sua sponte
reconsideration of the case. He agreed with the majority
about the probative value of the Sultan deposition, refer-
ring to the evidence as “critical.” Id., at 733. Unlike the
majority, however, Judge Suhrheinrich would have relied
upon fraud on the court to justify the decision to expand
the record and issue an amended opinion. Id., at 725–726,
729–742. He found “implausible” the explanation offered
by Thompson’s habeas counsel for his failure to include
the Sultan deposition in the District Court record, id., at
742, and speculated that counsel “planned to unveil Dr.
Sultan’s opinion on the eve of Thompson’s execution,” id.,
at 738, n. 21.
We granted certiorari. 543 U. S. ___ (2005).
II
At issue in this case is the scope of the Court of Appeals’
authority to withhold the mandate pursuant to Federal
 Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

Rule of Appellate Procedure 41. As relevant, the Rule
provides:
“(b) When Issued. The court’s mandate must issue
7 calendar days after the time to file a petition for re-
hearing expires, or 7 calendar days after entry of an
order denying a timely petition for panel rehearing,
petition for rehearing en banc, or motion for stay of
mandate, whichever is later. The court may shorten
or extend the time.
“(c) Effective Date. The mandate is effective when
issued.
“(d) Staying the Mandate.
“(1) On Petition for Rehearing or Motion. The
timely filing of a petition for panel rehearing, petition
for rehearing en banc, or motion for stay of mandate,
stays the mandate until disposition of the petition or
motion, unless the court orders otherwise.
“(2) Pending Petition for Certiorari.
“(A) A party may move to stay the mandate pending
the filing of a petition for a writ of certiorari in the
Supreme Court. The motion must be served on all
parties and must show that the certiorari petition
would present a substantial question and that there is
good cause for a stay.
“(B) The stay must not exceed 90 days, unless the
period is extended for good cause or unless the party
who obtained the stay files a petition for the writ and
so notifies the circuit clerk in writing within the pe-
riod of the stay. In that case, the stay continues until
the Supreme Court’s final disposition.
. . . . .
“(D) The court of appeals must issue the mandate
immediately when a copy of a Supreme Court order
denying the petition for writ of certiorari is filed.”
Tennessee argues that the Court of Appeals was re-
8 BELL v. THOMPSON

Opinion of the Court

quired to issue the mandate following this Court’s denial
of Thompson’s petition for certiorari. The State’s position
rests on Rule 41(d)(2)(D), which states that “[t]he court of
appeals must issue the mandate immediately when a copy
of a Supreme Court order denying the petition for writ of
certiorari is filed.” This provision, the State points out,
admits of no exceptions, so the mandate should have
issued on the date that a copy of this Court’s order deny-
ing certiorari was filed with the Court of Appeals, i.e.,
December 8, 2003.
The State further contends that because the mandate
should have issued in December 2003, the Court of Ap-
peals’ amended opinion was in essence a recall of the
mandate. If this view is correct, the Court of Appeals’
decision to revisit its earlier opinion must satisfy the
standard established by Calderon v. Thompson, 523 U. S.
538 (1998). Calderon held that “where a federal court of
appeals sua sponte recalls its mandate to revisit the merits
of an earlier decision denying habeas corpus relief to a state
prisoner, the court abuses its discretion unless it acts to
avoid a miscarriage of justice as defined by our habeas
corpus jurisprudence.” Id., at 558. See also Schlup v. Delo,
513 U. S. 298 (1995); Sawyer v. Whitley, 505 U. S. 333
(1992).
Thompson counters by arguing that Rule 41(d)(2)(D) is
determinative only when the court of appeals enters a stay
of the mandate to allow the Supreme Court to dispose of a
petition for certiorari. The provision, Thompson says, does
not affect the court of appeals’ broad discretion to enter a
stay for other reasons. He relies on Rule 41(b), which
provides the court of appeals may “shorten or extend the
time” in which to issue the mandate. Because the author-
ity vested by Rule 41(b) is not limited to the period before
a petition for certiorari is denied, he argues that the Court
of Appeals had the authority to stay its mandate following
this Court’s denial of certiorari and rehearing. Although
 Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

the Court of Appeals failed to issue an order staying the
mandate after we denied rehearing, Thompson asserts
that the court exercised its Rule 41(b) powers by simply
failing to issue it.
To resolve this case, we need not adopt either party’s
interpretation of Rule 41. Instead, we hold that—
assuming, arguendo, both that the Rule authorizes a stay
of the mandate following the denial of certiorari and also
that a court may stay the mandate without entering an
order—here the Court of Appeals abused its discretion in
doing so.
III
We find an abuse of discretion for the following reasons.
Prominent among our concerns is the length of time
between this Court’s denial of certiorari and the Court of
Appeals’ issuance of its amended opinion. We denied
Thompson’s petition for certiorari in December 2003 and
his petition for rehearing one month later. From this last
denial, however, the Court of Appeals delayed issuing its
mandate for over five months, releasing its amended
opinion in June.
The consequence of delay for the State’s criminal justice
system was compounded by the Court of Appeals’ failure
to issue an order or otherwise give notice to the parties
that the court was reconsidering its earlier opinion. The
Court of Appeals had issued two earlier orders staying its
mandate. The first order stayed the mandate pending
disposition of Thompson’s petition for certiorari. The
second order extended the stay to allow Thompson time to
file a petition for rehearing with this Court and “thereaf-
ter until the Supreme Court disposes of the case.” So by
the express terms of the second order the mandate was not
to be stayed after this Court acted; and when we denied
rehearing on January 20, 2004, the Court of Appeals’
second stay dissolved by operation of law. Tennessee,
10 BELL v. THOMPSON

Opinion of the Court

acting in reliance on the Court of Appeals’ earlier orders
and our denial of certiorari and rehearing, could assume
that the mandate would—indeed must—issue. While it
might have been prudent for the State to verify that the
mandate had issued, it is understandable that it pro-
ceeded to schedule an execution date. Thompson, after all,
had not sought an additional stay of the mandate, and the
Court of Appeals had given no indication that it might be
revisiting its earlier decision.
This latter point is important. It is an open question
whether a court may exercise its Rule 41(b) authority to
extend the time for the mandate to issue through mere
inaction. Even assuming, however, that a court could
effect a stay for a short period of time by withholding the
mandate, a delay of five months is different in kind.
“Basic to the operation of the judicial system is the princi-
ple that a court speaks through its judgments and orders.”
Murdaugh Volkswagen, Inc. v. First National Bank of
South Carolina, 741 F. 2d 41, 44 (CA4 1984). Without a
formal docket entry neither the parties nor this Court had,
or have, any way to know whether the court had stayed
the mandate or simply made a clerical mistake. Cf. Bal-
lard v. Commissioner, 544 U. S. ___, ___ (2005) (slip op., at
17). The dissent claims “the failure to notify the parties
was likely due to a simple clerical error” on the part of the
Clerk’s office. Post, at 12–13 (opinion of BREYER, J.). The
record lends no support to this speculation. The dissent
also fails to explain why it is willing to apply a “presump-
tion of regularity” to the panel’s actions but not to the
Clerk’s. Ibid.
The Court of Appeals could have spared the parties and
the state judicial system considerable time and resources
if it had notified them that it was reviewing its original
panel decision. After we denied Thompson’s petition for
rehearing, Tennessee scheduled his execution date. This,
in turn, led to various proceedings in state and federal
 Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

court to determine Thompson’s present competency to be
executed. See, e.g., Thompson v. State, 134 S. W. 3d 168
(Tenn. 2004). All of these steps were taken in reliance on
the mistaken impression that Thompson’s first federal
habeas case was final. The State had begun to “invok[e]
its entire legal and moral authority in support of executing
its judgment.” Calderon v. Thompson, 523 U. S., at 556–
557.
The parties’ assumption that Thompson’s habeas pro-
ceedings were complete was all the more reasonable be-
cause the Court of Appeals’ delay in issuing its mandate
took place after we had denied certiorari. As a practical
matter, a decision by this Court denying discretionary
review usually signals the end of litigation. While Rule
41(b) may authorize a court to stay the mandate after
certiorari is denied, the circumstances where such a stay
would be warranted are rare. See, e.g., First Gibraltar
Bank, FSB v. Morales, 42 F. 3d 895 (CA5 1995); Alphin v.
Henson, 552 F. 2d 1033 (CA4 1977). In the typical case,
where the stay of mandate is entered solely to allow this
Court time to consider a petition for certiorari, Rule
41(d)(2)(D) provides the default: “The court of appeals
must issue the mandate immediately when a copy of a
Supreme Court order denying the petition for writ of
certiorari is filed.”
By providing a mechanism for correcting errors in the
courts of appeals before Supreme Court review is re-
quested, the Federal Rules of Appellate Procedure ensure
that litigation following the denial of certiorari will be
infrequent. See Fed. Rule App. Proc. 40(a) (“Unless the
time is shortened or extended by order or local rule, a
petition for panel rehearing may be filed within 14 days
after entry of judgment”). See also Fed. Rules App. Proc.
35 (rehearing en banc), 40 (panel rehearing).
Indeed, in this case Thompson’s petition for rehearing
and suggestion for rehearing en banc pressed the same
12 BELL v. THOMPSON

Opinion of the Court

arguments that eventually were adopted by the Court of
Appeals in its amended opinion. The Sultan evidence,
first presented to the Court of Appeals as an attachment
to Thompson’s motion to hold his appeal in abeyance, was
quoted extensively in the petition for rehearing to the
Court of Appeals. Pet. for Rehearing and Suggestion for
Rehearing En Banc in No. 2:00–5516 (CA6), pp. 12–20,
28–31. After the request for rehearing was denied, the
State could have assumed with good reason that the Court
of Appeals was not impressed by Thompson’s arguments
based on the Sultan evidence. The court’s opportunity to
consider these arguments at the rehearing stage is yet
another factor supporting our determination that the
decision to withhold the mandate was in error. Cf.
Calderon v. Thompson, supra, at 551–553 (questioning
whether a “mishandled law clerk transition” and the “failure
of another judge to notice the action proposed by the original
panel” would justify recalling the mandate in a nonhabeas
case).
The dissent’s explanation of how the Sultan evidence
was overlooked is inaccurate in several respects. For
example, the statements that the “Sultan documents were
not in the initial record on appeal,” post, at 9, and that
“the panel previously had not seen these documents”
before the rehearing stage, id., at 9, convey the wrong
impression. Although the Sultan evidence was not part of
the District Court’s summary judgment record, the docu-
ments were included in the certified record on appeal as
attachments to Thompson’s Rule 60(b) motion. Record
133; Docket Entry 4/5/02 in No. 98–CV–6 (ED Tenn.);
Docket Entry 4/10/02 in No. 00–5516 (CA6). The dissent
also argues the petition for rehearing did not adequately
bring the Sultan evidence to the attention of the Court of
Appeals. Post, at 9–10, 13–14. This is simply untrue. The
original panel opinion, which did not discuss the Sultan
evidence in any detail, emphasized that Thompson had
 Cite as: 545 U. S. ____ (2005) 13

Opinion of the Court

failed to produce any evidence that he was mentally ill at
the time of his offense. 315 F. 3d, at 590; id., at 595–596
(Moore, J., concurring). The petition for rehearing attacked
this conclusion in no uncertain terms and placed the Sultan
evidence front and center. Here, for example, is an excerpt
from the petition’s table of contents:
“II. THE CONCLUSION THAT THERE IS NO
EVIDENCE PRESENTED IN THE RECORD OF
THOMPSON’S MENTAL ILLESS AT THE TIME OF
THE CRIME IS WRONG
“A. Thompson Has Set Forth Above The Record
Facts Demonstrating His Mental Illness At The Time
of The Crime
“B. The Majority Overlooks The Facts And Expert
Opinion Set Forth In Dr. Sultan’s Report and Deposi-
tion.” Pet. for Rehearing and Suggestion for Rehear-
ing En Banc in No. 2:00–5516 (CA6), p. ii.
See also id., at 1 (mentioning the Sultan evidence in the
second paragraph of the statement in support of panel
rehearing). The rehearing petition did not explain why
Sultan’s deposition and expert report had been omitted
from the summary judgment record but that is beside the
point. The petition acknowledged that the Sultan evi-
dence was first presented to the District Court as an at-
tachment to the Rule 60(b) motion, id., at 29, and gave the
Sultan evidence a prominent and explicit mention in the
table of contents. It is difficult to see how Thompson’s
counsel could have been clearer in telling the Court of
Appeals that it was wrong. The dissent’s treatment of this
issue assumes that judges forget even the basic details of a
capital case only one month after issuing a 38-page opin-
ion and that judges cannot be relied upon to read past the
first page of a petition for rehearing. The problem is that
the dissent cannot have it both ways: If the Sultan evi-
dence is as crucial as the dissent claims, it would not
14 BELL v. THOMPSON

Opinion of the Court

easily have been overlooked by the Court of Appeals at the
rehearing stage.
Our review of the Sultan deposition reinforces our con-
clusion that the Court of Appeals abused its discretion by
withholding the mandate. Had the Sultan deposition and
report been fully considered in the federal habeas proceed-
ings, it no doubt would have been relevant to the District
Court’s analysis. Based on the Sultan deposition Thomp-
son could have argued he suffered from mental illness at
the time of his crime that would have been a mitigating
factor under Tennessee law and that his trial attorneys
were constitutionally ineffective for failing to conduct an
adequate investigation into his mental health.
Relevant though the Sultan evidence may be, however,
it is not of such a character as to warrant the Court of
Appeals’ extraordinary departure from standard appellate
procedures. There are ample grounds to conclude the
evidence was unlikely to have altered the District Court’s
resolution of Thompson’s ineffective-assistance-of-counsel
claim. Sultan examined Thompson for the first time on
August 20, 1998, App. 37, some 13 years after Thompson’s
crime and conviction. She relied on the deterioration in
Thompson’s present mental health—something that obvi-
ously was not observable at the time of trial—as evidence
of his condition in 1985. (Indeed, there was a marked
decline in his condition during the 6-month period be-
tween Sultan’s first two visits. Id., at 51–58.) Sultan’s
findings regarding Thompson’s condition in 1985 are
contradicted by the testimony of two experts who exam-
ined him at the time of trial, Dr. Watson and Dr. Copple.
Watson performed a battery of tests at the Middle Tennes-
see Mental Health Institute, where Thompson was re-
ferred by the trial court for an examination, and concluded
that Thompson “ ‘[did] not appear to be suffering from any
complicated mental disorder which would impair his
capacity to appreciate the wrongfulness of the alleged
 Cite as: 545 U. S. ____ (2005) 15

Opinion of the Court

offenses, or which would impair his capacity to conform
his conduct to the requirements of the law.’ ” 19 Tr. 164.
Indeed, Watson presented substantial evidence supporting
his conclusion that Thompson was malingering for mental
illness. Id., at 151–152; 20 id., at 153–160. For example,
Thompson claimed he could not read despite a B average
in high school and one year’s college credit. 19 id., at 137;
20 id., at 151. Thompson’s test scores also indicated that
he was attempting to fake schizophrenia. 20 id., at 153–
154. Copple, the psychologist retained by Thompson’s
defense team, agreed with Watson that Thompson was not
suffering from mental illness. 19 id., at 58. Had the
Sultan deposition been included in the District Court
record, Thompson still would have faced an uphill battle to
obtaining federal habeas relief. He would have had to
argue that his trial attorneys should have continued to
investigate his mental health even after both Watson and
Copple had opined that there was nothing to uncover.
Sultan’s testimony does not negate Thompson’s respon-
sibility for committing the underlying offense, but it does
bear upon an argument that Thompson’s attorneys could
have presented at sentencing. Sultan’s ultimate conclu-
sion—that Thompson’s mental illness substantially im-
paired his ability to conform his conduct to the require-
ments of the law—is couched in the language of a
mitigating factor under Tennessee law. Tenn. Code Ann.
§39–2–203(j)(8) (1982). See also §39–13–204(j)(8) (Lexis
2003). Thompson’s trial attorneys, however, chose not to
pursue a mitigation strategy based on mental illness,
stressing instead character evidence from family and
friends and expert testimony that he had the capacity to
adjust to prison. Thompson v. State, 958 S. W. 2d, at 164–
165. This strategic calculation, while ultimately unsuc-
cessful, was based on a reasonable investigation into
Thompson’s background. Sultan relied on three witnesses
in preparing her report: Thompson’s grandmother, sister,
16 BELL v. THOMPSON

Opinion of the Court

and ex-girlfriend. These witnesses not only were inter-
viewed by the defense attorneys; they testified at sentenc-
ing. Consultation with these witnesses, when combined
with the opinions of Watson and Copple, provided an
adequate basis for Thompson’s attorneys to conclude that
focusing on Thompson’s mental health was not the best
strategy. As the Tennessee Court of Criminal Appeals
noted, “Because two experts did not detect brain damage,
counsel cannot be faulted for discarding a strategy that
could not be supported by a medical opinion.” Id., at 165.
Without a single citation to the record, the dissent sug-
gests that Thompson’s attorneys failed to conduct ade-
quate interviews of the defense witnesses on whom Sultan
relied in her report. Post, at 14–15. Most of the informa-
tion on Thompson’s childhood was provided to Sultan by
Nora Jean Wharton, Thompson’s older sister. App. 16–18.
Setting aside the fact that Thompson did not argue in
state court that his counsel’s interview of Wharton was
inadequate, Thompson v. State, 958 S. W. 2d, at 160–169,
Thompson’s attorneys cannot be faulted for failing to elicit
from her any details on Thompson’s difficult home life.
After all, Wharton testified at trial that Thompson’s child-
hood was “poor,” but “very happy.” 18 Tr. 3. The dissent
also implies that the experts who examined Thompson
lacked information necessary to reach an accurate as-
sessment. The record refutes this assertion. In conduct-
ing his examination, Watson had access to Thompson’s
social history and military records. 19 id., at 149; 20 id.,
at 186 (Exh. 102, pp. 11, 27–28). Watson was also aware
of the prior head injuries as well as Thompson’s claim that
he heard voices. 19 id., at 152; 20 id., at 154–155. Never-
theless, Watson, whose evaluation was contemporaneous
with the trial, found no evidence that Thompson was
mentally ill at the time of the crime. Watson’s report was
unequivocal on this point:
 Cite as: 545 U. S. ____ (2005) 17

Opinion of the Court

“ ‘Mr. Thompson’s speech and communication were
coherent, rational, organized, relevant, and devoid of
circumstantiality, tangentiality, looseness of associa-
tions, paranoid ideation, ideas of reference, delusions,
and other indicators of a thought disorder. His affect
was appropriate to his thought content, and he exhib-
ited no flight of ideas, manic, depressed, or bizarre
behaviors, and his speech was not pressured nor
rapid. He exhibited none of the signs of an affective
illness. His judgment and insight are rather poor.
Psychological testing revealed him to be functioning
in the average range intellectually, to exhibit no signs
of organicity or brain damage on the Bender-Gestalt
Test and the Bender Interference Procedure. Person-
ality profiles revealed no evidence of a psychosis, but
indicated malingering in the mental illness direction.
(For example, the schizophrenic score was at T 120,
while clinical observations revealed no evidence of a
thought disorder.) Mr. Thompson’s memory for recent
and remote events appeared unimpaired.’ ” 20 id., at
159–160.
Sultan’s testimony provides some support for the argu-
ment that the strategy of emphasizing Thompson’s posi-
tive attributes was a mistake in light of Thompson’s dete-
riorated condition 13 years after the trial. This evidence,
however, would not come close to satisfying the miscar-
riage of justice standard under Calderon had the Court of
Appeals recalled the mandate. Neither, in our view, did
this evidence justify the Court of Appeals’ decision to
withhold the mandate without notice to the parties, which
in turn led the State to proceed for five months on the
mistaken assumption that the federal habeas proceedings
had terminated. The dissent suggests that failing to take
account of the Sultan evidence would result in a “miscar-
riage of justice,” post, at 1–2, 16, but the dissent uses that
18 BELL v. THOMPSON

Opinion of the Court

phrase in a way that is inconsistent with our precedents.
In Sawyer v. Whitley, 505 U. S., at 545–547, this Court held
that additional mitigating evidence could not meet the
miscarriage of justice standard. Only evidence that affects
a defendant’s eligibility for the death penalty—which the
Sultan evidence is not—can support a miscarriage of
justice claim in the capital sentencing context. Id., at 547;
Calderon, 523 U. S., at 559–560.
One last consideration informs our review of the Court
of Appeals’ actions. In Calderon, we held that federalism
concerns, arising from the unique character of federal
habeas review of state-court judgments, and the policies
embodied in the Antiterrorism and Effective Death Pen-
alty Act of 1996 required an additional presumption
against recalling the mandate. This case also arises from
federal habeas corpus review of a state conviction. While
the State’s reliance interest is not as strong in a case
where, unlike Calderon, the mandate has not issued, the
finality and comity concerns that animated Calderon are
implicated here. Here a dedicated judge discovered what
he believed to have been an error, and we are respectful of
the Court of Appeals’ willingness to correct a decision that
it perceived to have been mistaken. A court’s discretion
under Rule 41 must be exercised, however, in a way that
is consistent with the “ ‘State’s interest in the finality of
convictions that have survived direct review within the
state court system.’ ” Id., at 555 (quoting Brecht v. Abra-
hamson, 507 U. S. 619, 635 (1993)). Tennessee expended
considerable time and resources in seeking to enforce a
capital sentence rendered 20 years ago, a sentence that
reflects the judgment of the citizens of Tennessee that
Thompson’s crimes merit the ultimate punishment. By
withholding the mandate for months—based on evidence
that supports only an arguable constitutional claim—while
the State prepared to carry out Thompson’s sentence, the
Court of Appeals did not accord the appropriate level of
 Cite as: 545 U. S. ____ (2005) 19

Opinion of the Court

respect to that judgment. See Calderon v. Thompson, su-
pra, at 554–557.
The Court of Appeals may have been influenced by
Sultan’s unsettling account of Thompson’s condition dur-
ing one of her visits. She described Thompson as being in
“terrible psychological condition,” “physically filthy,” and
“highly agitated.” App. 51. This testimony raised ques-
tions about Thompson’s deteriorating mental health and
perhaps his competence to be executed, but these concerns
were properly addressed in separate proceedings. Based
on the most recent state-court decision, which rejected the
argument that Thompson is not competent to be executed,
it appears that his condition has improved. Thompson v.
State, 134 S. W. 3d, at 184–185. Proceedings on this issue
were underway in the District Court when the Court of
Appeals issued its second opinion. If those proceedings
resume, the District Court will have an opportunity to
address these matters again and in light of the current
evidence.
Taken together these considerations convince us that
the Court of Appeals abused any discretion Rule 41 ar-
guably granted it to stay its mandate, without entering a
formal order, after this Court had denied certiorari. The
judgment of the Court of Appeals for Sixth Circuit is re-
versed.
It is so ordered.
 Cite as: 545 U. S. ____ (2005) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 04–514
_________________

RICKY BELL, WARDEN, PETITIONER v. GREGORY
THOMPSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 27, 2005]

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE GINSBURG join, dissenting.
This capital case arises out of unusual circumstances—
circumstances of a kind that I have not previously experi-
enced in the 25 years I have served on the federal bench.
After an appellate court writes and releases an opinion,
but before it issues its mandate, the writing judge,
through happenstance, comes across a document that (he
reasonably believes) shows not only that the court’s initial
decision is wrong but that the decision will lead to a seri-
ous miscarriage of justice. What is the judge to do?
What the judge did here was to spend time—hundreds
of hours (while a petition for certiorari was pending before
this Court and during the five months following our denial
of the petition for rehearing)—reviewing the contents of
the vast record with its many affidavits, reports, tran-
scripts, and other documents accumulated in the course of
numerous state and federal proceedings during the pre-
ceding 20 years. The judge ultimately concluded that his
initial instinct about the document was correct. The
document was critically important. It could affect the
outcome of what is, and has always been, the major issue
in the case. To consider the case without reference to it
could mean a miscarriage of justice.
The judge consequently wrote a lengthy opinion (almost
2 BELL v. THOMPSON

BREYER, J., dissenting

30,000 words) explaining what had happened. The other
members of the panel did not agree with everything in
that opinion, but they did agree that their initial decision
must be vacated.
The Court commendably describes what occurred as
follows: A “dedicated judge discovered what he believed to
have been an error, and we are respectful of the Court of
Appeals’ willingness to correct a decision that it perceived
to have been mistaken.” Ante, at 18. The Court, however,
does not decide this case in a manner consistent with that
observation. A somewhat more comprehensive account of
the nature of the “error”—of the matter at stake, of the
importance of the document, of the mystery of its late
appearance, of the potential for a miscarriage of justice—
should help make apparent the difficult circumstance the
panel believed it faced. It will also explain why there was
no “abuse” of discretion in the panel’s effort to “correct a
decision that it perceived to have been mistaken.”
I
Judge Suhrheinrich, the panel member who investi-
gated the record, is an experienced federal judge, serving
since 1984 as a federal trial court judge and since 1990 as
a federal appellate judge. He wrote a lengthy account of
the circumstances present here. To understand this case,
one must read that full account and then compare it with
the Court’s truncated version. I provide a rough summary
of the matter based upon my own reading of his opinion.
373 F. 3d 688, 692–742 (CA6 2004).
A
The panel’s initial decision, issued on January 9, 2003,
focused upon an issue often raised when federal habeas
courts review state proceedings in a capital case, namely,
the effectiveness of counsel at the original trial. 315 F. 3d
566, 587–594 (CA6 2003). See Strickland v. Washington,
 Cite as: 545 U. S. ____ (2005) 3

BREYER, J., dissenting

466 U. S. 668 (1984). In this instance, the federal ineffec-
tive-assistance claim was that state trial counsel had not
sufficiently investigated the background of the defendant,
Gregory Thompson. Thompson claimed that an adequate
investigation would have shown, to the satisfaction of
testifying experts, that he suffered from episodes of
schizophrenia at the time of the crime. The schizophre-
nia—though episodic—would have proved a mitigating
circumstance at the penalty phase. 373 F. 3d, at 697–698,
and n. 4.
Thompson’s trial took place in a Tennessee state court,
where he was found guilty of murder and sentenced to
death. His state-appointed counsel put on no defense at
trial. At sentencing, however, counsel sought to show that
Thompson was schizophrenic. State forensic psychologists
examined Thompson and concluded that Thompson,
probably “malingering,” did not show genuine and signifi-
cant symptoms of schizophrenia at that time and was not
mentally ill. A clinical psychologist hired by Thompson’s
counsel examined Thompson for eight hours and reached
approximately the same conclusion: he said that Thomp-
son was not then mentally ill. Id., at 692, 694–695.
Thompson raised the issue of his mental condition in
state postconviction proceedings, which he initiated in
1990. His expert witness, Dr. Gillian Blair, testified (with
much supportive material) that Thompson was by that
time clearly displaying serious schizophrenic symptoms—
voice illusions, attempts at physical self-mutilation, and
the like. Indeed, the State conceded that he was under a
regime of major antipsychotic medication. But Dr. Blair
said that she could not determine whether Thompson had
been similarly afflicted (i.e., suffering from episodes of
schizophrenia) at the time of the crime without a thorough
background investigation—funds for which the state court
declined to make available. The state court then ruled in
the State’s favor. Id., at 694–695.
4 BELL v. THOMPSON

BREYER, J., dissenting

Thompson filed a habeas petition in Federal District
Court about eight months after the state court’s denial of
postconviction relief became final. As I said above, see
supra, at 3, he claimed ineffective assistance of counsel.
The Federal District Court appointed counsel, an assistant
federal public defender. Counsel then obtained the ser-
vices of two experts, Dr. Barry Crown and Dr. Faye Sul-
tan. Both examined Thompson, and the latter, Dr. Sultan,
conducted the more thorough background investigation
that Dr. Blair had earlier sought. The State, after depos-
ing Dr. Sultan, moved for summary judgment. 373 F. 3d,
at 696, 700–704, 711.
The District Court granted that motion on the ground
that “Thompson has not provided this Court with anything
other than factually unsupported allegations that he was
incompetent at the time he committed the crime,” nor “has
Thompson provided this Court with any significant proba-
tive evidence that [he] was suffering from a significant
mental disease that should have been presented to the
jury during the punishment phase as mitigation evidence.”
Id., at 712–713 (quoting District Court’s memorandum
opinion (emphasis and internal quotation marks omitted)).
Thompson (now with a new public defender as counsel)
appealed the District Court’s grant of summary judgment
in the State’s favor. (A little over a year later, while the
appeal was still pending, Thompson’s new counsel, appar-
ently having discovered that Dr. Sultan’s deposition and
report had not been included in the record before the
District Court, filed a motion in that court for relief from
judgment under Federal Rule of Civil Procedure 60(b),
seeking to supplement the record with those documents.
Counsel also filed a motion in the appellate court, with the
Sultan deposition attached, requesting that the appeal be
held in abeyance while the District Court considered the
Rule 60(b) motion. Both motions were denied, and
Thompson’s counsel did not take an appeal from the Dis-
 Cite as: 545 U. S. ____ (2005) 5

BREYER, J., dissenting

trict Court’s denial of the Rule 60(b) motion.) 373 F. 3d, at
714–715, and n. 10, 724–725.
The Court of Appeals reviewed the District Court’s
grant of summary judgment. In doing so, the appellate
panel examined the record before that court. It noted that
Thompson’s federal habeas counsel had hired two experts
(Crown and Sultan), and had told the court (in an offer of
proof) that they would provide evidence that Thompson
suffered from mental illness at the time of the crime. But
the appellate panel found that neither expert had done so.
Indeed, said the panel, Thompson had “never submitted to
any court any proof that he suffered from severe mental
illness at the time of the crime.” 315 F. 3d, at 590 (em-
phasis altered). Though Thompson’s several attorneys
had made the same allegation for many years in several
different courts (said the panel), “at each opportunity,
counsel fail[ed] to secure an answer to the critical issue of
whether Thompson was mentally ill at the time of the
crime.” Ibid. That fact, concluded the panel (over a dis-
sent), was fatal to Thompson’s basic ineffective-assistance-
of-counsel claim. Obviously “trial counsel cannot be
deemed ineffective for failing to discover something that
does not appear to exist.” Ibid.; see also id., at 595 (Moore,
J., concurring in result) (“Thompson has presented no
evidence that his [trial] counsel knew or should have
known either that Thompson was mentally ill or that his
mental condition was deteriorating at the time of his trial
or at the time of his crime”). The dissenting judge thought
Thompson had made out an ineffective-assistance claim by
showing that his trial counsel had relied on an inadequate
expert, that is, an expert without the necessary qualifica-
tions to counter the State’s experts’ conclusions. Id., at
599–605 (opinion of Clay, J.).
The appeals court issued its opinion on January 9, 2003.
Thompson’s appointed federal appeals counsel filed a
rehearing petition, which the court denied on March 10,
6 BELL v. THOMPSON

BREYER, J., dissenting

2003. See App. to Pet. for Cert. 346 (Order in No. 00–5516
(CA6)). Thompson’s counsel then sought Supreme Court
review. This Court denied review (and rehearing) about
one year later. 540 U. S. 1051 (2003) (denying certiorari);
540 U. S. 1158 (2004) (denying rehearing).
B
The Court of Appeals, following ordinary appellate-court
practice, withheld issuance of its mandate while the case
was under review here, namely during calendar year 2003.
During that time and in the months that followed, some-
thing unusual happened. Judge Suhrheinrich realized
that the panel, in reaching its decision, seemed to have
overlooked documents provided by Dr. Sultan that likely
were relevant. In September 2003, the appellate court
called for the entire certified record. Upon reviewing that
record, Judge Suhrheinrich found Dr. Sultan’s deposition
and accompanying report. 373 F. 3d, at 692–693; App. to
Pet. for Cert. 347–348; see also Appendix, infra.
The Sultan documents filled the evidentiary gap that
underlay the District Court’s and the appellate panel’s
determinations. These documents made clear that Dr.
Sultan had investigated Thompson’s background in depth
and that in her (well-supported) opinion, Thompson had
suffered from serious episodic bouts of schizophrenia at
the time the crime was committed. Clearly the documents
contained evidence supporting Thompson’s claim regard-
ing his mental state at the time of the offense. Why had
the District Court denied the existence of any such evi-
dence? Why had Judge Suhrheinrich, and the other mem-
bers of the panel (and the State, which took Dr. Sultan’s
deposition) done the same?
Judge Suhrheinrich then drafted an opinion that sought
to answer three questions:
Question One: Do these documents actually provide
strong evidence that Thompson was schizophrenic (and
 Cite as: 545 U. S. ____ (2005) 7

BREYER, J., dissenting

seriously so) at the time of the crime?
Question Two: If so, given the many previous opportuni-
ties that Thompson has had to raise the issue of his men-
tal health, to what extent would these documents be likely
to matter in respect to the legal question raised in Thomp-
son’s federal proceedings, i.e., would they likely lead a
federal habeas court to hold that Thompson’s trial counsel
was ineffective for failing to undertake a background
investigation akin to that performed by Dr. Sultan?
Question Three: How did these documents previously
escape our attention?
1
The panel answered the first question—regarding the
importance of the documents—unanimously. Sultan’s
report and deposition were critically important. As Judge
Suhrheinrich’s opinion explains, these documents detail
Thompson’s horrendous childhood, his family history of
mental illness, his self-destructive schizophrenic behavior
(including auditory hallucinations) as a child, his mood
swings and bizarre behavior as a young adult, and a wors-
ening of that behavior after a serious beating to his head
that he suffered while in the Navy. For example, Dr.
Sultan’s examination of Thompson and her interviews
with Thompson’s family members and others revealed that
as a child Thompson would repeatedly bang his head
against the wall to “knock the Devil out” after his grand-
mother yelled at him, “You have the Devil in you.” 373
F. 3d, at 716 (internal quotation marks omitted). These
documents explain how Thompson, as a young adult,
would talk to himself and scream and cry for no apparent
reason. They suggest that he had bouts of paranoia.
The documents provide strong support for the conclu-
sion that Thompson suffered from episodes of schizophre-
nia at the time of the offense. And they thereby offer
significant support for the conclusion that, had earlier
8 BELL v. THOMPSON

BREYER, J., dissenting

testifying experts had this information, they could have
countered the State’s experts’ conclusion that Thompson
was malingering at the time of trial. Thus, the Sultan
materials seriously undermined the foundation of the
State’s position in respect to Thompson’s mental condition.
The Sultan materials also revealed that trial counsel
failed to discover other mitigating evidence of importance.
Interviews with family members revealed repeated inci-
dents of violence in the family, including an episode in
which, as a young boy, Thompson witnessed his father
brutally beat and rape his mother. His grandmother, with
whom Thompson and his siblings lived after their mother
died, subjected them to abuse and neglect. She would
forget to feed the children, leaving them to steal money
from under her bed to buy food. These and other circum-
stances are detailed in sections of the Sultan report and
deposition reproduced in the Appendix, infra.
2
The panel also responded unanimously and affirma-
tively to the second question: Would federal-court access to
the Sultan documents likely have made a significant
difference in respect to the federal legal question at issue
in Thompson’s habeas petition, namely, the failure of
Thompson’s trial counsel to investigate his background?
Trial counsel had had important indications that some-
thing was wrong. Indeed, counsel himself had sought an
evaluation of Thompson’s mental condition. He also was
aware of Thompson’s violent behavior in the military, and
knew that Thompson had said he had had auditory hallu-
cinations all his life. He was aware, too, of the changes in
Thompson’s behavior. Should counsel not then have
investigated further?
The Sultan documents make clear that, had he done so,
he would have had a strong answer to the State’s experts.
Thus the documents were relevant to the outcome of the
 Cite as: 545 U. S. ____ (2005) 9

BREYER, J., dissenting

federal habeas proceedings. The Federal District Court
based its grant of summary judgment on the premise that
there was no evidence supporting Thompson’s claim. The
documents showed that precisely such evidence was then
available.
3
The panel (while disagreeing about how to allocate
blame) agreed in part about the answer to the third ques-
tion: how these documents previously had escaped the
panel’s attention. The judges agreed that the Sultan
documents were not in the initial record on appeal. The
panel’s original opinion, while mentioning both Dr. Sultan
and Dr. Crown, assumed that neither expert had ad-
dressed Thompson’s mental condition at the time of the
crime. 315 F. 3d, at 583, n. 13 (“Sultan’s affidavit does not
discuss Thompson’s mental state at the time of the offense”
(emphasis added)); ibid. (explaining that Thompson filed a
Rule 60(b) motion to supplement the record with Dr.
Sultan’s report, but not mentioning that the report ad-
dressed Thompson’s mental condition at the time of the
offense); see also supra, at 5.
How had the panel overlooked the copies of the Sultan
deposition attached to (1) the rehearing petition and (2)
the (Rule 60(b)-related) motion to hold the appeal in abey-
ance? As for the rehearing petition, the reason could well
lie in the petition’s (incorrect) suggestion that the panel
had already considered the appended document as part of
the original record. See Pet. for Rehearing and Suggestion
for Rehearing En Banc in No. 2:00–5516 (CA6), p. 1 (“A
majority of this panel overlooked other proof in the record,
including but not limited to, the expert opinion of Dr. Faye
E. Sultan”); see also id., at 28–32. While the petition
explains the importance of the documents, it does not
explain the circumstances, namely, that the panel previ-
ously had not seen these documents. Instead, it gives the
10 BELL v. THOMPSON

BREYER, J., dissenting

impression that counsel was simply reemphasizing a
matter the panel had already considered. To that extent,
the petition reduced the likelihood that the panel would
make the connection it later made and fatally weakened
its argument for re-hearing.
As for the motion to hold the appeal in abeyance, the
panel’s failure to recognize the significance of the ap-
pended Sultan materials is also understandable. The
motion gives the impression that the appellate court
would have been able to handle any problem arising from
the exclusion of these materials in an appeal taken from
the District Court’s Rule 60(b) decision. The appellate
court, however, never had any such opportunity because
counsel did not appeal the District Court’s denial of the
Rule 60(b) motion.
C
Once the panel understood the significance of the Sultan
report, it had to decide what to do. An appellate court
exists to correct legal errors made in the trial court. What
legal error had the District Court committed? The appeal
concerned its grant of summary judgment in the State’s
favor. The District Court made that decision on the basis
of the record before it, and that record apparently lacked
the relevant documents. How then could an appeals court
say that the District Court was wrong to grant the sum-
mary judgment motion?
The panel answered this question by not holding that
the District Court had erred. Finding that the Sultan
documents had been “apparently negligently omitted”
from the record, it exercised its equitable powers to sup-
plement the record with the deposition. 373 F. 3d, at 691.
It also found that, since the State itself had helped to
create that document (because the State had taken Sul-
tan’s deposition), the District Court’s reconsideration of
the matter would not unfairly prejudice the State. And it
 Cite as: 545 U. S. ____ (2005) 11

BREYER, J., dissenting

noted that this case is a death case. Then, relying on its
“inherent power to reconsider” an opinion “prior to the
issuance of the mandate,” the court issued a new opinion,
vacating the District Court’s grant of summary judgment
to the State and remanding the case to the District Court
for further proceedings on the matter. Ibid.
II
The question before us is not whether we, as judges,
would have come to the same conclusions as did the panel
of the Court of Appeals. It is whether the three members
of the appellate panel abused their discretion in reconsid-
ering the matter and, after agreeing unanimously that
they would have reached a different result had they con-
sidered the overlooked evidence, vacating the District
Court’s judgment and remanding the case.
The Court concludes that the panel’s reconsideration of
the matter and decision to vacate the District Court’s
judgment amounted to an “abuse of discretion.” Ante, at 1.
It therefore reverses the panel’s unanimous interlocutory
judgment remanding a capital case to the District Court
for an evidentiary hearing. The Court lists five reasons
why the Court of Appeals “abused its discretion.” None of
these reasons, whether taken separately or considered
together, stands up to examination.
Reason One. During the 5-month period after this Court
denied rehearing of Thompson’s certiorari petition, during
which time the Court of Appeals was reconsidering the
matter, it gave “no indication that it might be revisiting its
earlier decision.” Had it “notified” the parties, the court
“could have spared the parties and the state judicial system
considerable time and resources.” Ante, at 10.
If this consideration favors the Court’s conclusion, it
does so to a very modest degree. For one thing, the Fed-
eral Rules themselves neither set an unchangeable dead-
line for issuance of a mandate nor require notice when the
12 BELL v. THOMPSON

BREYER, J., dissenting

court enlarges the time for issuance. Compare Fed. Rule
App. Proc. 41(b) (2005) (“The court may shorten or extend
the time”), with Rule 41(b) (1968) (mandate “shall” issue
“unless the time is shortened or extended by order” (em-
phasis added)). The Advisory Committee Notes to Rule 41
expressly contemplate that the parties will themselves
check the docket to determine whether the mandate has
issued. See Advisory Committee’s 1998 Note on subd. (c)
of Rule 41 (“[T]he parties can easily calculate the antici-
pated date of issuance and verify issuance of the man-
date[;] the entry of the order on the docket alerts the
parties to that fact”). And Sixth Circuit Rules require the
Circuit Clerk to provide all parties with copies of the
mandate. See Internal Operating Procedure 41(a) (CA6
2005) (“Copies of the mandate are distributed to all parties
and the district court clerk’s office”). Thus, the State’s
attorneys knew, or certainly should have known, that the
mandate had not issued, and, as experienced practitioners,
they also knew, or certainly should have known, that a
proceeding is not technically over until the court has
issued its mandate. And if concerned by the delay (and
some delay in such matters is not uncommon), they could
have asked the Circuit Clerk why the mandate had not
issued. If necessary, they could have filed a motion seek-
ing that information or seeking the mandate’s immediate
issuance.
For another thing, since notification is a clerical duty,
the panel may have thought the parties had been notified.
One of the judges on the panel could well have instructed
the Circuit Clerk not to issue the mandate, and then
simply have assumed that the Clerk would notify the
parties of that fact (though the Clerk, perhaps inadver-
tently, did not do so). Why would the court want to hide
what it was doing from the parties? Once we apply a
presumption of regularity to the panel’s actions, we must
assume that the failure to notify the parties was likely due
 Cite as: 545 U. S. ____ (2005) 13

BREYER, J., dissenting

to a simple clerical error.
Further, the prejudice to the State that troubles the
Court was likely small or nonexistent. The need to reset
an execution date is not uncommon, and the state court’s
execution order explicitly foresaw that possibility. See 373
F. 3d, at 692 (Tennessee Supreme Court order set Thomp-
son’s execution date for August 19, 2004, “unless other-
wise ordered by this Court or other appropriate authority”
(internal quotation marks omitted)). Moreover, the State
has not even argued—despite ample opportunity to do
so—that the further proceedings ordered by the panel
would actually have required it to set a new date.
Finally, the State did not, by way of a petition for re-
hearing, make any of its “failure to notify” arguments to
the Court of Appeals. Although the law does not require
the State to seek rehearing, such a petition would have
permitted the panel to explain why the State was not
notified and possibly to explore the matter of prejudice.
There is no reason to reward the State for not filing a
petition by assuming prejudice where none appears to
exist.
Given the State’s likely knowledge that the mandate
had not issued, the existence of avenues for resolving any
uncertainty, and the small likelihood of prejudice, the lack
of notice does not significantly advance the Court’s “abuse
of discretion” finding. Indeed, if the Court believes that
the Court of Appeals could have issued a revised opinion
correcting its earlier judgment if only it had given notice to
the parties, the sanction it now imposes—outright rever-
sal—is far out of proportion to the crime.
Reason Two. The court’s “opportunity to consider” the
Sultan evidence “at the rehearing stage is yet another
factor supporting” the abuse-of-discretion “determination.”
Ante, at 12. I agree that it is unfortunate that, upon
review of the rehearing petition, the panel failed to make
the connection that would have allowed it, at that time, to
14 BELL v. THOMPSON

BREYER, J., dissenting

reach the same conclusion it reached later. Still, the
petition wrongly implied that the Sultan documents were
part of the original appeal. Because it did not request
rehearing on the ground that the documents were not in
the record, it did not offer a genuine “opportunity to con-
sider” the Sultan evidence.
Under these circumstances, I cannot agree that the
court’s opportunity to consider these documents at the
rehearing stage should militate in favor of finding an
abuse of discretion. To the contrary, I believe we should
encourage, rather than discourage, an appellate panel,
when it learns that it has made a serious mistake, to take
advantage of an opportunity to correct it, rather than to
ignore the problem.
Reason Three. The “Sultan evidence . . . is not of such a
character as to warrant [a] . . . departure from standard
appellate procedures” because “the evidence was unlikely to
have altered the District Court’s resolution of Thompson’s
ineffective-assistance-of-counsel claim.” Ante, at 14. That
is to say, given the expert testimony in the trial court, the
Sultan evidence is unlikely meaningfully to have strength-
ened Thompson’s claim before the Federal District Court.
Ante, at 14–15.
This conclusion is wrong. The Court argues the follow-
ing: (1) Dr. Sultan’s conclusion rests in significant part
upon interviews with three witnesses, Thompson’s grand-
mother and sister (with whom Dr. Sultan spoke directly)
and his girlfriend (whose interview with a defense investi-
gator Dr. Sultan reviewed); (2) since all three of these
witnesses testified at sentencing, Thompson’s counsel
must have consulted them at the time; and (3)
“[c]onsultation with these witnesses, when combined with
the opinions of [the State’s expert] and [Thompson’s ex-
pert], provided an adequate basis for Thompson’s attor-
neys to conclude that focusing on Thompson’s mental
health was not the best strategy.” Ante, at 16. The Court
 Cite as: 545 U. S. ____ (2005) 15

BREYER, J., dissenting

then says that trial counsel’s “strategy” may have been “a
mistake,” ante, at 17, but apparently not enough of a
mistake to amount to inadequate assistance of counsel.
But how do the Court’s conclusions follow from the
premises? Dr. Sultan’s interview of the three witnesses
apparently turned up new information, indeed, crucial
information. Why does that fact not tend show that trial
counsel’s own “consultation” with those witnesses was
inadequate? Or, if trial counsel was aware of the informa-
tion, why does that not tend to show that trial counsel
hired an expert who was not qualified to assess Thomp-
son’s mental condition, or that counsel failed adequately to
convey the critical information to that expert? This Court
in Wiggins v. Smith, 539 U. S. 510, 523–525 (2003), found
trial counsel inadequate for failing to conduct a reasonable
investigation, given notice that such an investigation
would likely turn up important mitigating evidence. See
also Rompilla v. Beard, ante, p. ___. Why is the same not
true here, where Thompson’s trial counsel was fully aware
of the need for a background investigation, and then either
did not ask the right questions, or did not hire the right
expert, or did not convey the right information to that
expert? At the least, is there not a good argument to this
effect—an argument that the Sultan documents signifi-
cantly strengthened? All three judges on the panel
thought so: They concluded that they would have reached
a different result on Thompson’s ineffective-assistance-of-
counsel claim had they been aware of the Sultan docu-
ments. The Court does not satisfactorily explain its basis
for second-guessing the panel on this point.
Reason Four. The Sultan evidence does “not come close
to satisfying the miscarriage of justice standard under
Calderon.” Ante, at 17 (referring to Calderon v. Thomp-
son, 523 U. S. 538 (1998)). As the Court apparently
agrees, see ante, at 8–9, Calderon does not apply here.
And the panel’s basic conclusion—that consideration of
16 BELL v. THOMPSON

BREYER, J., dissenting

Thompson’s ineffective-assistance-of-counsel claim with-
out the benefit of the Sultan evidence would constitute a
grave miscarriage of justice—survives any plausible stan-
dard of review. I can find nothing in the Court’s opinion
that explains why the panel’s conclusion is wrong.
Reason Five. The Court of Appeals “did not accord the
appropriate level of respect” to the State’s “judgment.”
Ante, at 19. If by “judgment” the Court means to refer to
the state court’s original judgment of conviction, this
reason simply repeats Reason Four. The panel carefully
examined the entire record and determined that there is a
significant likelihood the Sultan evidence would demon-
strate a violation of the Federal Constitution.
If the Court means to refer to the state court’s judgment
not to set aside the conviction in state postconviction
proceedings, the Court is clearly wrong. The state court
on collateral review refused to authorize funds for a back-
ground investigation, one for which Thompson’s expert
then showed a strong need, and which Thompson’s expert
now shows could well have demonstrated a significantly
mitigating mental condition. How is it disrespectful of the
State for a federal habeas court to identify a constitutional
error that occurred in state-court proceedings in a capital
case, by taking account of a key piece of evidence, mistak-
enly omitted from the record?
If the Court means to refer to the State’s decision to
proceed with the execution, I cannot possibly agree. The
Court could not mean that any exercise by a federal court
to correct an inadvertent, and important, evidentiary error
is “disrespectful” of a State’s effort to proceed to execution.
But if it does not mean “any” exercise at all, then how can
it say the present exercise is disrespectful? The present
exercise embodies as thorough an examination of the
record and as significant a piece of evidence as one is
likely to find. The process—the detail and care with which
the Court of Appeals combed the record—does not show
 Cite as: 545 U. S. ____ (2005) 17

BREYER, J., dissenting

“disrespect.” It shows the contrary.
The upshot is that the Court’s five reasons are uncon-
vincing. The Court simply states those reasons as conclu-
sions. It fails to show how, or why, the unanimous panel
erred in reaching diametrically opposite conclusions, all
supported with detailed evidence set forth in Judge Suhr-
heinrich’s opinion. It does not satisfactorily explain the
evidentiary basis for its own conclusions. And, in the
process, it loses sight of the question before us: again, not
whether we, as judges, would have reached the same
conclusion that the three judges on the panel reached, but
rather whether they, having unanimously agreed that
their earlier decision was wrong, abused their discretion in
setting it right.
III
Ultimately this case presents three kinds of question.
The first is a narrow legal question. Has the Court of
Appeals abused its discretion? For the reasons I have set
forth, the answer to that question, legally speaking, must
be “no.”
The second is an epistemological question. How, in
respect to matters involving the legal impact of the Sultan
report and deposition, can the Court replace the panel’s
judgment with its own? Judge Suhrheinrich’s opinion
demonstrates why any assessment of that legal impact
must grow out of thorough knowledge of the record. He
spent hundreds of hours with its numerous documents in
order to make that assessment. Those of his conclusions
that were shared by the other members of the panel are
logical, rest upon record-based facts, and are nowhere
refuted (in respect to those facts) by anything before us or
by anything in the Court’s opinion. How can the Court
know that the panel is wrong?
The third question is about basic jurisprudence. A legal
system is based on rules; it also seeks justice in the indi-
18 BELL v. THOMPSON

BREYER, J., dissenting

vidual case. Sometimes these ends conflict. To take ac-
count of such conflict, the system often grants judges a
degree of discretion, thereby providing oil for the rule-
based gears. When we tell the Court of Appeals that it
cannot exercise its discretion to correct the serious error it
discovered here, we tell courts they are not to act to cure
serious injustice in similar cases. The consequence is to
divorce the rule-based result from the just result. The
American judicial system has long sought to avoid that
divorce. Today’s decision takes an unfortunate step in the
wrong direction.
 Cite as: 545 U. S. ____ (2005) 19

Appendix to opinion of BREYER, J.

APPENDIX TO OPINION OF BREYER, J.

Excerpts from the Gregory Thompson Psychological
Report prepared by Dr. Faye E. Sultan at the River-
bend Maximum Security Institution (RMSI) (July 22,
1999), App. 11–20.

“REFERRAL QUESTIONS:

“Mr. Gregory Thompson was referred for psychological
evaluation in July, 1998 by attorney Mr. Stephen M.
Kissinger of the Federal Defender Services of Eastern
Tennessee Incorporated. Mr. Thompson was convicted of
murder in 1985. This evaluation was requested to address
the following questions:
“1. Mr. Thompson’s current psychological status[.]
“2. Mr. Thompson’s likely psychological status and
mental state before and surrounding the time of the
1985 offense.
“3. Social, environmental, psychological, and economic
factors in the life of Mr. Thompson which might have
be[en] considered to be mitigating in nature at the
time of his trial.
“PROCEDURE:
“Psychological evaluation of Mr. Thompson was initiated
on August 20, 1998. This first evaluation session extended
over a period of approximately four hours and consisted of
clinical interview and the administration of the Minnesota
Multiphasic Personality Inventory–2 (MMPI–2). Some
review of prior psychological evaluation records was con-
ducted to establish what formal psychological and neuro-
psychological testing had been administered to Mr.
Thompson. Levels of current intellectual and neuropsy-
chological functioning had been recently assessed by neu-
ropsychologist, Barry Crown, Ph.D., so no attempt was
20 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

made to replicate this type of assessment.
“Following the 8–20–98 initial evaluation session, a very
extensive review of legal, military, medical, prison and
psychiatric/psychological records was initiated. A list of
the documents examined is attached to this report.
. . . . .
“. . . Two further interviews were conducted with Mr.
Thompson for [the] limited purpose [of determining
Thompson’s competence to participate in habeas proceed-
ings], on 2–2–99 and 4–7–99, totaling approximately six
hours of additional observation. Voluminous Tennessee
Department of Corrections mental health, medical, and
administrative records were reviewed at this time as well.
. . . . .
“[T]he extensive record review conducted, the ten hours of
clinical observations made of Mr. Thompson during the
preceding eleven months, the interviews conducted with
collateral informants, and the recent and past psychologi-
cal testing which had been administered provide enough
data to make it possible to render professional opinions
about Mr. Thompson’s mental state at and around the
time of the 1985 offense.
“CLINICAL OBSERVATIONS:
“Mr. Gregory Thompson was cooperative with the assess-
ment procedure. He answered all questions posed to him
and appeared to be alert, watchful and interested in the
interview process. His speech was sometimes tangential
and rambling. Although motor behavior appeared con-
trolled there was a manic quality to his verbalizations.
Mr. Thompson was oriented as to person, place and time,
but he repeatedly expressed his firm belief that he had
written each and every song which played on the radio.
“Mr. Thompson displayed symptoms of psychosis during
the two subsequent meetings. The details of these ses-
sions will not be reviewed here.
 Cite as: 545 U. S. ____ (2005) 21

Appendix to opinion of BREYER, J.

“FORMAL PSYCHOLOGICAL TESTING:
“The Minnesota Multiphasic Personality lnventory–2
(MMPI–2) was administered to Mr. Thompson on 8–20–
98. It had been determined in other examination settings
that Mr. Thompson’s level of reading competence exceeded
the necessary level of 8th grade ability required for proper
administration of this test.
“The MMPI–2 profile produced by Mr. Thompson is con-
sidered valid and appropriate for interpretation. Indi-
viduals producing similar profiles are described as experi-
encing significant psychological difficulties and chronic
psychological maladjustment. Such individuals are con-
sidered to be highly suspicious of others, often displaying
paranoid features. There is indication in this profile of the
presence of a thought disorder and the inability to manage
emotions. The world is perceived as a threatening and
dangerous place and fears are viewed as externally gener-
ated and reality-based rather than as a product of an
internally generated state. The behavior of such individu-
als is often described as hostile, aggressive, and rebellious
against authority. Poor impulse control, lack of trust in
others, and low frustration tolerance may result in such
individuals displaying rage in interpersonal relationships.
“Individuals producing this testing profile are also de-
scribed as experiencing depressed mood. There is the
strong possibility that such individuals have contemplated
suicide and report preoccupation with feeling guilty and
unworthy. Testing items were endorsed which suggest
memory and concentration problems, and an inability to
make decisions.
“RELEVANT PSYCHOLOGICAL/PSYCHIATRIC DATA
CONTAINED IN RECORDS:

“The[re] is substantial documentation throughout the

Tennessee Department of Corrections records that Mr.

Greg Thompson has suffered from significant mental

22 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

illness since at least the time of . . . his incarceration in
1985. He has been treated almost continuously with some
combination of major tranquilizer and/or anti-depressant
and/or anti-anxiety medications. He has received a vari-
ety of diagnostic labels including Psychosis, Psychosis Not
Otherwise Specified, Paranoid Schizophrenia, Mania,
Mixed Substance Abuse, Schizophrenia, BiPolar Affective
Disorder, Schizoaffective Disorder, Malingering, and Adult
Antisocial Behavior. This is clearly indicative of the Ten-
nessee DOC mental health staff’s view that Mr. Thompson
has experienced major mental illness throughout at least
most of his period of incarceration. Further, there is
extensive documentation contained in these records of
many episodes of bizarre aggressive and/or self-destructive
behavior.
“INTERVIEWS WITH COLLATERAL WITNESSES:
“Five individuals were interviewed (either by telephone or
face-to-face) who provided significant supplemental infor-
mation about the life circumstances and past/present
psychological functioning of Mr. Gregory Thompson.
“Ms. Maybelle Lamar
“Ms. Lamar is Mr. Thompson’s maternal grandmother.
She was interviewed by telephone on July 21, 1999. Ms.
Lamar assumed total responsibility for the care and rear-
ing of Mr. Thompson and his two older siblings after his
mother was killed when Mr. Thompson was approximately
five years old. Mr. Thompson remained in her home until
he entered the military as a young adult.
“Ms. Lamar recalls the period following her daughter’s
fatal automobile accident as one of tremendous strain and
disruption for her. She was unable to describe the reac-
tion of the three young children to their mother’s death
because she ‘took to my bed’ for approximately five or six
weeks following the accident. Ms. Lamar was unable to
 Cite as: 545 U. S. ____ (2005) 23

Appendix to opinion of BREYER, J.

attend to these children in any way at that time. She did
not recall how they obtained food or clothing, or whether
they were in any distress. Ms. Lamar reported that she
was drinking alcohol quite heavily during this period and
that she left her bed to resume household activities only
because the children contracted a serious medical illness.
“Ms. Lamar described Mr. Thompson as displaying signifi-
cantly ‘different’ behavior when he returned to visit her
following his discharge from the U. S. Navy. ‘Greg didn’t
act the same’. Unlike the ‘eager to please’, passive, some-
times funny, gentle boy who she had reared, Mr. Thomp-
son was ‘angry’, ‘sometimes sad’. ‘I don’t think he wanted
me to know what was going on with him. He mostly just
stayed away from me.’ Ms. Lamar reported that she no-
ticed Mr. Thompson sometimes ‘staring off into space’ or
‘talking to himself ’. She would ask him about these be-
haviors. ‘He’d deny it. He acted like he didn’t know what
I was talking about.’ Ms. Lamar recalls being quite con-
cerned about her grandson’s mental state during this time.
She did not recall ever being asked these questions at any
time before or during Mr. Thompson’s trial.
“Ms. Nora Jean Hall Wharton
“Nora Jean Wharton is Mr. Thompson’s older sister. A
lengthy telephone interview was conducted with her on
July 21, 1999. She grew up in the same home as Mr.
Thompson and had continuous contact with him through-
out his childhood. Mr. Thompson lived briefly in the home
of his sister following his discharge from the military.
“Ms. Wharton described Mr. Greg Thompson as a highly
sensitive, passive, timid, emotionally vulnerable child.
She described a childhood of great hardship. According to
her report, their grandmother, Ms. Maybelle Lamar[,] was
verbally abusive, neglectful of the children’s basic daily
needs, highly critical, and unable to care properly for the
children. Ms. Wharton described many instances of such
24 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

abuse and neglect. She described the period following
their mother’s death as particularly chaotic and neglectful,
recalling that often there was no food in the home and
that the children would take money from under their
grandmother’s mattress to go and buy food. In the period
following their mother’s death, Ms. Wharton reported that
her grandmother was continuously drunk and unable to
care for her grandchildren. According to Ms. Wharton,
Greg Thompson frequently witnessed his sister Nora being
beaten by their grandmother.
“Ms. Wharton further recalled that she and her younger
brother had witnessed the brutal beating and rape of their
mother by their biological father. She recalls Greg stand-
ing in the scene screaming and sobbing uncontrollably.
“Ms. Wharton reported that Greg would frequently cry at
school during the early school years, and, as a result, was
often the victim of intense mockery from his classmates.
Because Ms. Wharton was in the same classroom as her
brother she observed these behaviors and often intervened
on her brother’s behalf. She described Mr. Thompson’s
response to this abuse as quite passive.
“Of particular significance is Ms. Wharton’s recollections
about Mr. Thompson repeatedly banging his head against
the wall of their home on many occasions during their
early childhood. This behavior frequently followed their
grandmother yelling at Greg ‘You have the Devil in you.’
Mr. Thompson would tell his sister that he was attempt-
ing to ‘knock the Devil out’ of his head in this way. Ms.
Wharton recalls believing that this behavior was quite
odd.
“Following his discharge from military service, Ms. Whar-
ton described Mr. Thompson’s behavior as significantly
different than his prior conduct and attitude. She re-
ported several episodes of bizarre behavior which included
a sudden intense emotional reaction without obvious
external provocation. Mr. Thompson would become ex-
 Cite as: 545 U. S. ____ (2005) 25

Appendix to opinion of BREYER, J.

tremely angry, would cry and scream for a len[g]thy period
of time, would appear as if he might or actually become
quite physically violent or aggressive, and then would
suddenly retreat. Ms. Thompson reported this behavior
and her concerns about it to her grandmother. Ms. Lamar
suggested that Ms. Wharton take her brother to the psy-
chiatric unit of the local hospital for treatment. Ms.
Wharton did not attempt to get any treatment for Mr.
Thompson and reports feeling quite guilty about this.
“Nora Jean Wharton described her own struggles with
mental illness throughout the past fifteen years. She has
received counseling to assist her in coping with the effects
of her abusive childhood and she has been treated with a
combination of a major tranquilizer (Stellazine) and anti-
depressant medications. She reported that her younger
half-sister Kim has also suffered from significant mental
illness.
“CUSTODY OFFICERS AT RMSI
“Following the second interview conducted with Mr.
Thompson on 2–2–99, I informally interviewed two cus-
tody officers who escorted Mr. Thompson back to his cell.
These officers have not as yet been identified by name.
Both reported that they were aware that Mr. Thompson
was quite mentally ill and that they were concerned about
him. They further reported that they believed it would be
in his best interest to be housed in a prison facility better
equipped to deal with individuals experiencing severe
mental illness.
“MICHAEL CHAVIS
“Federal Defender Services of Eastern Tennessee investi-
gator, Mr. Michael Chavis, was interviewed about his July
29 through August 2, 1998 interview with Ms. Arlene
Cajulao in Honolulu, Hawaii. Ms. Cajulao and Mr.
Thompson had an intimate relationship and lived together
26 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

for approximately four years, from 1980 to 1984.
“Mr. Chavis reported that Ms. Cajulao described Mr.
Thompson as displaying increasingly bizarre behavior
during the latter part of their relationship. Similar to
descriptions proved by Ms. Nora Wharton, Ms. Cajulao
reported several episodes of ‘paranoid’ and aggressive
behavior which had no apparent external antecedent. She
reported that Mr. Thompson sometimes thought that
people were ‘after’ him. He would close all the curtains in
the house because he did not want the person who was
‘looking’ for him to see him through the curtains. She
remembers being quite concerned about Mr. Thompson’s
mental state.
“SUMMARY AND CONCLUSIONS:
“Mr. Gregory Thompson has experienced symptoms of
major mental illness throughout his adult life. Indeed,
there is information available which suggests that Mr.
Thompson was displaying significant signs of mental
illness from the time he was a small child. Self-injurious
behavior is reported as early as six years old. There is
extensive documentation contained within the records
reviewed for this evaluation that Mr. Thompson has ex-
perienced a thought disorder and/or an affective disorder
of some type for many years.
“It is my opinion that Mr. Gregory Thompson is most
appropriately diagnosed, according to the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, as
having Schizoaffective Disorder, Bipolar Type. As is
typical of this illness, symptoms became apparent in early
adulthood. Mr. Thompson was suffering serious mental
illness at the time of the 1985 offense for which he has
been convicted and sentenced. This mental illness would
have substantially impaired Mr. Thompson’s ability to
conform his conduct to the requirements of the law.
“Further, Mr. Thompson was the victim of severe child-
 Cite as: 545 U. S. ____ (2005) 27

Appendix to opinion of BREYER, J.

hood emotional abuse and physical neglect. His family
background is best described as highly neglectful and

economically deprived. Mr. Thompson repeatedly wit
-
nessed episodes of violence during his childhood in which

one family member assaulted or brutalized another.

There are significant aspects of Mr. Thompson’s social

history that have been recognized as mitigating in other

capital cases

“It is important to note that all of the information related

to Mr. Thompson’s early mental illness and social history

was available at the time of his 1985 trial.

“[signed]

“Faye E. Sultan, Ph.D.”

* * *

Excerpts from the Deposition of Dr. Faye E. Sultan
(July 22, 1999), Id., at 71–73, 76–80.
“Q. What indicates to you or what indicia are there for
you that suggest Mr. Thompson was displaying significant
signs of mental illness from the time he was a small child?
How do you arrive at that conclusion?
“A. . . . . .
“By the time of the first grade, Mr. Thompson, when he
was being yelled at by his grandmother, she was report-
edly verbally abusive in the following fashion: She would
yell at him you have the devil in you, boy. [His sister, Ms.
Wharton] would then observe Mr. Thompson standing or
sitting beside a wall repeatedly banging his head into the
wall. She, in her role as protector of him, would ask him
what was going on, and he would tell her he was trying to
knock the devil out of his head. She recalls at the time,
although she was quite young herself, being worried about
his behavior and thinking of it as very odd.
28 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

. . . . .
“Q. Sort of a self-punishment or a self-exorcism type
thing?
“A. A self-injurious behavior is what we would call it I
think. Mr. Thompson, when he was Greg, in the first and
second and third grade had rather frequent hysterical
crying episodes in classrooms that Ms. Wharton recalls
also as very unusual in the context of his schoolroom
situation. She describes him as being the subject of tor-
ment on the part of the students because he behaved in an
odd fashion. Sometimes he would simply begin to cry and
wail and scream and apparently made a sound like a fire
engine when he was sobbing and developed the nickname
Fire Engine. That’s reported in the trial transcript. She
told me much more detail about actually the extent of
those kind[s] of emotional outbursts.
“At home it was rather common for Mr. Thompson to
begin to cry and scream during times when Ms. Wharton
herself was being beaten by their grandmother. Ms.
Wharton was the victim of physical abuse on the part of
the grandmother. Mr. Thompson observed much of this
since they were together virtually all of the time, and Nora
Wharton was not really permitted much interaction out-
side of their home.
. . . . .
“Q. Your diagnosis for Mr. Thompson is schizoaffective
disorder, comma, bipolar type. What leads you to that
diagnosis from what you’ve reviewed and your testing
results?
“A. What leads me to the diagnosis is that there is a
long history, perhaps at this point almost a 20-year his-
tory, of simultaneous thought disorder on the part of Mr.
Thompson documented throughout all the records, and
affective disorder, emotional disorder, being unable to
regulate his emotions, sometimes falling into the pits of
despair and becoming suicidal, sometimes becoming
 Cite as: 545 U. S. ____ (2005) 29

Appendix to opinion of BREYER, J.

highly agitated and manic and having too much energy,
too much exuberance, and grandiose thinking. The
thought disorder is manifested in persecutory ideas, delu-
sions of grandeur—lots of different kinds of delusions
actually—auditory hallucinations that he sometimes
admits to, sometimes suspected by the doctors who are
doing the examination.
“The psychological testing early on in Mr. Thompson’s
incarceration confirm[s] the presence of a psychotic proc-
ess. There was an MMPI administered to him by a prison
psychologist in 1990 that is described as valid and indica-
tive of psychotic process, and throughout the prison record
he receives a variety of diagnoses that take into account
both thought disorder and affective illness.
“The very best diagnosis to describe all of the complex of
symptoms that I just talked to you about is schizoaffective
disorder, bipolar type.
“Q. You note in your report Mr. Thompson was ob-
served having a significant change in behavior after he
was discharged from the Navy. What significance do you
attach to that fact?
“A. Well. . . [p]rior to his entry into the military Mr.
Thompson is described almost uniformly . . . as passive, as
compliant, as eager to please, as gentle, as timid, as eager
to run from attacks.
“At some point . . . he began to notice that people were
trying to hurt him all the time, that officers and other
people of his rank and slightly above his rank attempted
to provoke him, that they sometimes physically assaulted
him, that he thought he was being followed a lot, and that
he sometimes struck out in what he thought was defense
and then later found out from other people who he knew
and trusted that there wasn’t anything to defend against
or that there might not have been anything to defend
against.
“Q. This is what he related to you during your interview
30 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

last August?
“A. Right. The people who saw him after the military
each were struck by how very different he seemed. That
was the word that kept being used, ‘different.’ Sometimes
the people I was speaking to were not able to describe
what different meant, but, for example, the grandmother
said that he was different as in not right, that he wasn’t
himself. Ms. Wharton tells me that the grandmother was
very well aware that he was in deep psychological distress,
and, in fact, the grandmother suggested that he be taken
to the psychiatric unit at Grady Hospital in Atlanta, I
believe, for treatment. The grandmother observed him
staring off into space for long periods of time. She ob-
served him mumbling to himself. When she asked him
what he was doing, he told her he had no idea what she
was talking about. She said that was very different from
the boy who left her to go into service.
“The sister has even a better glimpse of him than that,
because he actually went to live with her for a while, and
she said he was bizarre. She described him as paranoid.
She said that he would explode for no reason at all, that
she was afraid of him for the very first time in her life,
that they had always been terribly close, the sort of close
where if there was only one piece of bread to eat they
would share it, that they always looked out for one an-
other, and that suddenly he was behaving in ways that
she simply could not identify. She described three very
serious episodes of aggression and emotional upset that
she said are what led her to approach her grandmother
about what to do for treatment for him.
. . . . .
“Q. You state that the schizoaffective disorder, bipolar
type, would substantially impair Mr. Thompson’s ability to
conform his conduct to the requirements of the law. How
so?
“A. There are points in time when Mr. Thompson is out
 Cite as: 545 U. S. ____ (2005) 31

Appendix to opinion of BREYER, J.

of contact with reality. He is responding to situations that
simply don’t exist or that he perceives in extremely exag-
gerated or different form. A person is not able to conform
one’s conduct to the law if you are frankly delusional or
hallucinating in some way. Mr. Thompson over the years
has had both of those symptoms.
“Q. So it’s this delusional aspect of this disorder that is
the main factor that would keep him from having the
ability to conform his conduct to the requirements of law,
if I understand you correctly?
“A. Is it the main factor? Let me say that I think it’s at
least as potent a factor if not more as the other aspect of
his mental illness, which is that he has emotional disregu-
lation.
“Q. Meaning?
“A. Meaning Mr. Thompson often is not in control of his
emotions. He has episodes of rage, of aggression, that he
doesn’t understand or relate to very well. He’s told about
them later. Sometimes he remembers them, sometimes he
doesn’t. He is often embarrassed about his behavior af-
terwards, but there are points at which I believe he’s not
in control of what he’s doing.
“Q. When you say ‘he’s not in control of what he’s do-
ing,’ are you saying that it’s impulsive behavior?
“A. If I am emotionally disregulated, if I’m over-aroused
and overreactive and I operate out of a faulty belief sys-
tem, so that not only do I have the impulse to do things
that I ordinarily wouldn’t, but I also think things are
going on that aren’t, I have a combination in which yes, I
suppose you could call it impulse, but you also have to
take the notion into account that it might be an impulse to
do something that doesn’t make any sense.
“Q. Does this disorder prevent Mr. Thompson from
planning his activities?
“A. Sometimes, yes, it does.
“Q. And so the inability to plan, would that be a factor
32 BELL v. THOMPSON

Appendix to opinion of BREYER, J.

that would prevent him from conforming his conduct to
the requirements of the law?
“A. If that were in operation at some time. In the his-
tory of the Department of Corrections’ mental health
records, when he’s properly medicated I don’t think that’s
true about him.
“Q. Is it your professional opinion, then, that when he is
medicated he has the ability to plan, but when he is not
medicated he does not always have the ability to plan?
“A. Those two things are true. It’s also true that if he’s
inadequately medicated or improperly medicated he
doesn’t have the ability to plan anything. I don’t know
whether he has impulses. I think he’s all impulse, so to
have impulses implies that there’s a part of you that’s not
impulsive. For example, when Mr. Chavis and I saw him
during my second interview with him, he could not have
planned anything at all, not beyond the nanosecond in
which he was experiencing the world. But he was receiv-
ing psychotropic medications at the time, so that’s why I
have to put that qualifier in there.”