Legal Research AI

Anderson v. Sirmons

Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-02-21
Citations: 476 F.3d 1131
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61 Citing Cases

                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                      PUBLISH
                                                                 February 21, 2007
                  UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 G LEN N D O UG LA S A N D ER SON,

             Petitioner-A ppellant,
       v.                                             No. 04-6397
 M ARTY SIRM ONS, W arden,
 Oklahoma State Penitentiary,

             Respondent-Appellee.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
            FO R TH E W ESTERN DISTRICT O F O K LAH O M A
                        (D.C. NO . CV-01-177-M )


Lisa S. M cCalmont (Randy Bauman w ith her on the briefs), Assistant Federal
Public D efenders, Oklahoma City, Oklahoma, for A ppellant.

Robert W hittaker, Assistant Attorney General (W . A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Appellee.


Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.


M U RPH Y, Circuit Judge.
                                I. IN TR OD UC TIO N

      Following trial in Oklahoma state court, a jury convicted Glenn Douglas

Anderson of, inter alia, three counts of first degree murder. Anderson v. State,

992 P.2d 409, 412-13 (Okla. Crim. App. 1999). The jury sentenced Anderson to

death on each of the three murder convictions. Id. at 413. The O klahoma Court

of Criminal Appeals (“OCCA”) affirmed on direct appeal Anderson’s convictions

and death sentences. Id. at 425. It also denied his subsequent request for post-

conviction relief. Anderson v. State, No. PC-99-818, slip. op. at 7 (Okla. Crim.

App. Jan. 26, 2000). Anderson then filed the instant 28 U.S.C. § 2254 habeas

corpus petition in federal district court. In his § 2254 habeas petition, Anderson

asserted ten grounds in support of his claim that both his convictions and death

sentences were constitutionally infirm. The federal district court denied relief on

all grounds set out in Anderson’s habeas petition. On appeal, Anderson limits his

challenge to the constitutional validity of his death sentences, raising six claims

of constitutional error during the penalty phase of the state court proceedings. 1



      1
        Anderson raises on appeal the following six issues: (1) trial counsel failed
to properly investigate and present a constitutionally adequate case in mitigation
during the penalty phase of the trial; (2) he was denied fundamental fairness when
the trail court restricted voir dire regarding a potential juror’s ability to consider
all three possible punishment options should the jury eventually find Anderson
guilty on the murder charges; (3) his right to a fundamentally fair trial was
violated because his trial was held in a courtroom where a mural over the bench
depicted the biblical phrase “An eye for an eye and a tooth for a tooth”; (4) the
admission of irrelevant victim impact evidence during the penalty phase of the
                                                                           (continued...)

                                          -2-
He also asserts the federal district court erred in denying his request for discovery

and an evidentiary hearing on his ineffective assistance claim.

      Upon review, this court concludes Anderson has demonstrated he received

constitutionally ineffective assistance of counsel during the penalty phase of his

trial. 2 Having so concluded, it is unnecessary to address the other contentions

raised by Anderson on appeal. The order of the district court denying Anderson’s

§ 2254 habeas petition is hereby reversed and the matter is remanded to the

district court to grant the writ consistent with this opinion.



                                II. BACKGROUND

A. Factual Background

      The background facts leading to Anderson’s arrest and prosecution, as

summarized by the O CCA, are as follow s:

            Between 3:00 and 4:00 a.m. on September 28, 1996,
      [Anderson] burst into the trailer home of M arvin M athesen
      brandishing a firearm. [A nderson] told M athesen that they needed to
      talk. Shortly thereafter, Richard Thornburg and Roger Embrey also
      entered the trailer. Thornburg had been shot prior to this night and


      1
        (...continued)
trial rendered the sentencing proceeding fundamentally unfair; (5) Oklahoma’s
continuing threat aggravating circumstance is unconstitutionally vague and
overbroad; and (6) the prosecution failed to submit sufficient evidence in support
of the murder-committed-to-avoid-lawful-arrest aggravating circumstance.
      2
       Because the district court granted Anderson a certificate of appealability as
to each issue raised on appeal, this court has jurisdiction over this appeal pursuant
to 28 U.S.C. § 2253(c).

                                          -3-
      the three wanted to question M athesen about the shooting. All three
      men were armed and they told M athesen they were going to shoot
      him if he lied to them. The three men also suspected Jim Poteet in
      the shooting. They decided to question M athesen and Poteet together
      so they could figure out whether M athesen or Poteet had shot
      [Thornburg]. [3]
             The three armed men forced M athesen out of his trailer at gun
      point and drove him to Poteet’s residence. Once there, Thornburg
      and Embrey went into the house and [Anderson] and M athesen stayed
      in the car. W hen [Anderson] and M athesen heard gun shots come
      from the house they went to see what had happened. They saw Terry
      Shepard sitting in a chair by the bathroom door and Poteet sitting on
      the bed in the back bedroom. Thornburg was holding Poteet at gun
      point. Poteet had been shot in the foot and was bleeding between the
      eyes.
             [Anderson] suggested that Thornburg take M athesen and go
      get any people present from Poteet’s rental house which was located
      about seventy yards from Poteet’s residence. W hile they were
      walking over to the rental house, Keith Smith walked up the
      driveway. Thornburg forced Smith to knock on the door of the rental
      house and when he did, Donnie Scott opened the door. Thornburg
      then forced Scott, Smith and M athesen to w alk back to Poteet’s
      residence.
             Once back at Poteet’s house, Thornburg went back into the
      bedroom with Poteet. Soon, Embrey took M athesen to the back
      bedroom. In the bedroom, Thornburg gave M athesen a gun and told
      him to shoot Poteet while [Anderson], Thornburg and Embrey all
      pointed their guns at M athesen. A gunshot was fired from behind
      M athesen and Poteet was shot in the side. The only person standing
      behind M athesen at this time was Thornburg. Thornburg, [Anderson]
      and Embrey then told M athesen to shoot another person or they



      3
        In this sentence of its factual summary, the OCCA refers to Anderson as
the person who had been shot prior to the evening of September 28, 1996. In a
prior sentence in the same paragraph, however, the OCCA refers to Thornburg as
the assailant who had previously been shot. Anderson v. State, 992 P.2d 409, 413
(Okla. Crim. App. 1999). As noted by the district court, the trial transcript makes
clear that Thornburg, not Anderson, was the individual that had been shot prior to
the night upon which Anderson, Thornburg, and Embrey participated in the
murders leading to Anderson’s prosecution.

                                        -4-
      would shoot M athesen. M athesen shot at Scott but the gun did not
      fire. Thornburg made M athesen fire again while [Anderson] and
      Embrey pointed their guns at him. This time M athesen shot Scott in
      the chest. Embrey took M athesen outside to the car. W hile they
      were at the car, M athesen heard more shots come from the house.
      The house was burned and [Anderson], Thornburg, Embrey and
      M athesen left the area in Thornburg’s car. They stopped to hide the
      guns and let M athesen out of the car.
             Shortly after 5:00 a.m. Loyd Keagans and his son, who were
      driving by, noticed the burning house. As they drove up to the
      house, they saw an injured man outside. This man was D onnie Scott,
      who had been shot in the chest. The Keagans took Scott to a
      convenience store and called the police. Scott survived the shooting
      but the bodies of Jim Poteet, Keith Smith and Terry Shepard were
      found in the burned house. Each of them had been shot and had
      either died from gunshot wounds or a combination of gunshot
      wounds and fire related injuries.
             W hen Scott was able, he gave a statement to the police telling
      what had happened. M athesen also told the authorities what had
      happened. [A nderson], Embrey and Thornburg were subsequently
      arrested.

Anderson, 992 P.2d at 413-14.

B. Procedural Background

      The procedural history of Anderson’s claim of ineffective assistance of

counsel is unusual. Anderson did not raise on direct appeal or in his state

application for post-conviction relief a claim his counsel was constitutionally

ineffective for failing to develop an adequate case in mitigation during the penalty

phase of the trial. Instead, the issue w as raised for the first time in A nderson’s

§ 2254 habeas petition in federal court. Anderson argued the district court should

nevertheless decide this unexhausted issue on the merits because both direct

appeal counsel and state-provided post-conviction attorneys labored under an

                                           -5-
actual conflict of interest which precluded him from receiving effective assistance

of counsel. See 28 U.S.C. § 2254(b)(1)(B)(ii) (providing an exception to the

general exhaustion requirement when “circumstances exist that render [state court

remedies] ineffective to protect the rights of the applicant”). In the alternative,

Anderson requested that the district court hold his § 2254 habeas petition in

abeyance so he could return to state court and exhaust his state court remedies.

      In a written order, the district court denied Anderson’s request to decide the

unexhausted ineffective assistance claim on the merits and, instead, abated

Anderson’s habeas petition so he could return to state court and exhaust the

claim. In so doing, the district court began by noting

            Although the arguments set forth by [Anderson] in this case
      perhaps offer a basis for avoiding the procedural default rule, no
      such rule has been applied by an Oklahoma court to the claim
      presented in Ground One of the instant petition. [Anderson’s]
      argument fails to establish the absence or insufficiency of any
      available process by which he could raise the issue at this time.
      Indeed, [Anderson] is not without recourse in an effort to exhaust the
      unexhausted portion of his ineffective assistance of counsel claim.

Anderson v. M ullin, No. CIV -01-177-M , slip op. at 3 (W .D. Okla. June 11, 2003).

The district court then went on to conclude there was a real possibility

Anderson’s claim would be addressed on the merits in state court and that Rule

9.7(G) of the Rules of the Oklahoma Court of Criminal Appeals 4 provided a



      4
       Rule 9.7(G) provides that a second or successive application for post-
conviction relief can be considered by the OCCA to the extent such petition raises
                                                                     (continued...)

                                          -6-
procedural mechanism for Anderson to raise his ineffective assistance claim in

state court in a subsequent state application for post-conviction relief. Because of

what the district court perceived as a potential for availability of state process,

and because it was less than clear Anderson’s claim was procedurally barred, the

district court abated the case pending further proceedings in Oklahoma state

court.

         After the district court abated Anderson’s federal habeas petition,

Anderson’s federal counsel made a special appearance in Oklahoma state court to

request the appointment of conflict-free counsel to represent Anderson in a

second application for post-conviction relief. Federal habeas counsel noted that

he was prohibited from providing substantive representation to Anderson in state

court because the scope of his representation was limited to the federal habeas

proceedings. He further indicated, however, that his special appearance was the

only feasible means to adequately call this matter to the state court’s attention. In

response to the motion, the Oklahoma D istrict Court of Grady County entered an

order appointing the Oklahoma Indigent Defense System (“OIDS”) to represent



         4
        (...continued)
claims in which the factual or legal basis was unavailable at the time of the filing
of the original application for post-conviction relief. Rules of the Oklahoma
Court of Criminal Appeals, Okla. Stat. Ann., tit. 22, ch. 18, app. Subsection
9.7(G)(3) further provides, however, that such a claim shall not be considered
unless the successive application for post-conviction relief is filed within sixty
days “from the date the previously unavailable legal or factual basis serving as a
basis for the new issue is announced or discovered.” Id.

                                           -7-
Anderson in pursuing a second application for post-conviction relief in the

OCCA. The order further provided that if the OIDS did not hire conflict-free

counsel to represent Anderson, the matter would be set for further hearing. The

OID S then hired Andrea M iller to represent Anderson in pursuing a second state

application for post-conviction relief.

      M iller thereafter filed an Entry of Appearance and Notice to Court in the

OCCA (the “Notice”). 5 The Notice was filed in the OCCA on July 15, 2003,

approximately twenty months after Anderson filed his federal habeas petition and

approximately forty-three months after the OCCA denied Anderson’s initial

request for post-conviction relief. The N otice set out the procedural history

relating to M iller’s appointment, the underlying basis for Anderson’s claim of

ineffective assistance of counsel during the penalty phase of the trial, and the

facts indicating the O IDS may have been operating under a conflict of interest

when it represented Anderson on direct appeal and on his first application for

post-conviction relief. Based on the recency of her appointment, the voluminous

record, and the exceedingly complex nature of the issues involved, M iller asked

the OCCA to grant her additional time within which to review, investigate, and

prepare a successor petition for post conviction relief. The OCCA denied the




      5
       See Okla. Stat. Ann. tit. 22, § 1089 (providing that application for post-
conviction relief where applicant is under penalty of death shall be filed directly
with OCCA).

                                          -8-
request for additional time to prepare a second petition for post-conviction relief,

simply noting that any successor petition would be untimely under Rule 9.7(G)(3)

of the Rules of the Oklahoma Court of Criminal Appeals. In light of the order of

the OCCA denying the extension on the basis of Rule 9.7(G)(3), both OIDS and

M iller concluded it would be futile to proceed further with M iller’s representation

of A nderson in state court proceedings.

      Anderson then filed a M otion to Restore Case to Active Status and Proceed

to M erits Adjudication (the “M otion to Restore”) in federal district court. In the

M otion to Restore, Anderson argued he had exhausted his claim and that the

procedural bar applied by the OCCA, Rule 9.7(G)(3), was not sufficient to bar the

claim on federal habeas review because it was not regularly and consistently

applied. As to the matter of exhaustion, Anderson noted the order of the OCCA

denying M iller additional time to prepare a successor state application for post-

conviction relief made clear that no such application would be accepted because it

would be untimely under Rule 9.7(G)(3). The preemptive application of a

procedural bar rendered the actual filing of a second application for post-

conviction relief futile and fully exhausted available state court remedies. W ith

regard to the procedural bar, Anderson cited numerous instances in which the

OCCA had declined to apply the procedural bar set out in Rule 9.7(G)(3) in

situations similar to his. Because the OCCA had not applied the procedural bar

regularly and consistently in the vast majority of cases, Anderson argued Rule

                                           -9-
9.7(G)(3) was not adequate to bar federal review of his claim of ineffective

assistance during the penalty phase of his state court trial. See Ford v. Georgia,

498 U.S. 411, 424 (1991); Johnson v. M ississippi, 486 U.S. 578, 587 (1988).

      In its response to the M otion to Restore, Oklahoma simply averred that

Anderson had not properly exhausted his ineffective assistance claim as to the

penalty phase of the trial because he had not filed a second application for post-

conviction relief with the OCCA. Oklahoma supported this assertion with an

unusual argument: if, as Anderson alleged, the OCCA had applied Rule 9.7(G)(3)

in an inconsistent fashion, Anderson should be required to file a successor

application for state post-conviction relief, even in the face of the OCCA’s denial

of the request for time to prepare such an application, because the OCCA might

still exercise its discretion to review the application on the merits. Oklahoma did

not address or contradict, in any fashion, Anderson’s claim the OCCA had not

applied Rule 9.7(G)(3) in a regular or consistent fashion.

      The district court was unconvinced by Oklahoma’s arguments regarding

exhaustion and procedural bar of Anderson’s ineffective assistance claim. The

district court began by noting that once exhaustion becomes futile, it is no longer

required. 28 U.S.C. § 2254(b)(1)(B); James v. Gibson, 211 F.3d 543, 550 (10th

Cir. 2000). In its order denying M iller’s request for time to prepare a second

state application for post-conviction relief, the OCCA had clearly stated that any

such application would be barred by application of Rule 9.7(G)(3). Because it

                                        -10-
would have been futile for Anderson to have proceeded to file a second

application for post-conviction relief in these circumstances, the district court

concluded Anderson’s claim of ineffective assistance during the penalty phase of

this trial was effectively exhausted or excused from exhaustion.

      Having so concluded, the district court moved on to consider whether that

claim was procedurally barred. See James, 211 F.3d at 550 (“Even if failure to

exhaust is excused, however, . . . claims may otherw ise be procedurally barred.”).

The district court recognized the OCCA had treated the claim as procedurally

barred, pursuant to Rule 9.7(G)(3), in its order denying M iller time to prepare a

second state application. In his M otion to Restore, however, Anderson had placed

the adequacy of Rule 9.7(G)(3) at issue by citing numerous cases in which that

procedural bar was not evenhandedly applied. Thus, the burden was on Oklahoma

to prove the adequacy of Rule 9.7(G )(3). Hooks v. Ward, 184 F.3d 1206, 1217

(10th Cir. 1999). Because Oklahoma had never offered up a defense of the

adequacy of Rule 9.7(G), the district court ruled it was “unable to conclude that

Rule 9.7(G) is applied evenhandedly in the vast majority of cases.” Anderson,

No. CIV-01-177-M , slip op. at 43. Accordingly, the district court concluded

Anderson’s claim of ineffective assistance of counsel was exhausted, but not

procedurally barred, and proceeded to decide the issue on the merits.

      As to the merits, the district court applied the governing framew ork from

Strickland v. Washington, 466 U.S. 668 (1984), and concluded Anderson was not

                                         -11-
entitled to habeas relief. The district court first concluded trial counsel had

rendered deficient performance in failing to investigate and prepare an adequate

case in mitigation for the penalty phase of Anderson’s trial. Nevertheless, the

district court concluded Anderson had not demonstrated he was prejudiced by

counsel’s deficient performance. In particular, the district court concluded the

prosecution case was strong, Anderson had been found guilty of participating in

the murder of three individuals, and the jury had found the existence of three

aggravating circumstances. In light of these factors, the district court concluded

Anderson had not demonstrated a reasonable probability the outcome of the

penalty phase would have been different if the additional mitigation evidence

identified by Anderson would have been presented at trial.

       Anderson appeals, asserting, inter alia, the district court erred in denying

him habeas relief on his claim of ineffective assistance during the penalty phase

of his trial.



                                 III. D ISC USSIO N

A. Exhaustion/Procedural Bar

       Oklahoma argues on appeal that Anderson’s ineffective assistance of trial

counsel claim is both unexhausted and procedurally barred. In particular,

Oklahoma asserts that to properly exhaust the claim, Anderson was required to

file a successive application for post-conviction relief raising such a claim in the

                                         -12-
OCCA despite the OCCA’s denial of Anderson’s request for an extension to

prepare an application. Having failed to file such an application, Oklahoma

asserts the claim is not only unexhausted, but also subject to application of an

anticipatory procedural bar.

      “There is a ‘strong presumption’ in favor of requiring exhaustion of state

remedies.” Beavers v. Saffle, 216 F.3d 918, 924 n.3 (10th Cir. 2000).

Nevertheless, this court has recognized a narrow exception to the exhaustion

requirement where “[f]urther state court proceedings would be futile.” Bear v.

Boone, 173 F.3d 782, 785 (10th Cir. 1999). A review of the order of the OCCA

denying Anderson’s request for time to prepare a successive application for post-

conviction relief demonstrates this is one of those unusual cases in which further

proceedings in state court would most assuredly have been futile. Accordingly,

Anderson was not required to file such an application to exhaust his state court

remedies.

      As noted above, within a week of contracting with OIDS to represent

Anderson in the filing of a successive state application for post-conviction relief,

M iller filed the Notice in the OCCA setting out the complicated procedural

history of Anderson’s case and requesting time to prepare an adequate post-

conviction application raising the issue of trial counsel’s ineffective assistance




                                         -13-
during the penalty phase of the trial. 6 In denying that request, the OCCA made

absolutely clear that because any such successor application Anderson could

potentially file in state court would be barred by application of Rule 9.7(G)(3), no

extension was necessary. In its order denying the Notice, the OCCA began by

noting that Anderson’s request for additional time to file a successive application




      6
        As an apparent corollary to its argument that Anderson did not exhaust his
ineffective assistance of counsel claim because he did not ultimately file a
successive application for post-conviction relief, Oklahoma asserts M iller was
obligated to file such an application immediately upon her appointment based
solely upon the material developed by federal habeas counsel. According to
Oklahoma, her failure to do so should weigh against a determination that actually
filing such a petition would have been futile. The problem with Oklahoma’s
assertion is two-fold. First, Oklahoma’s assertion M iller was obligated to proceed
with the filing of a successive application for post-conviction relief without
undertaking any investigation of the factual and/or legal basis of such an
application is squarely at odds with Oklahoma law. Okla. Stat. Ann. tit. 22,
§ 1088.1(A) (providing that by “signing, filing, submitting, or later advocating”
an application for post-conviction relief, an attorney is certifying that “to the best
of the [attorney’s] knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances,” that the factual assertions have evidentiary
support and the legal contentions are “warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law
or the establishment of new law ”); id. § 1088.1(B) (providing for the imposition
of sanction on attorneys that fail to comply with the requirements of
§ 1088.1(A)). Second, as set out below, there is nothing in the order of the
OCCA denying the Notice indicating that if M iller proceeded in the manner
suggested by Oklahoma, the OCCA would have considered such an application on
the merits. Instead, it is absolutely clear that the O CCA denied M iller’s request
for time to adequately investigate and prepare a successive application for post-
conviction relief because any such application would be time barred under Rule
9.7(G)(3). M iller’s decision not to proceed on the reckless course now advocated
by Oklahoma has no bearing on the question whether it would have been futile to
file a successive application for post-conviction relief in light of the order of the
OCCA denying M iller’s request for adequate time to prepare such an application.

                                         -14-
for post-conviction relief fell “under the authority of 22 O.S. 2001, § 1089(D)(2)

& (8) and Rule 9.7(G ), Rules of the Oklahoma Court of Crim inal Appeals, Title

22, Ch. 18, app. (2002).” The OCCA further noted that under subsection three of

Rule 9.7(G), it would not consider a subsequent application for post-conviction

relief unless such application is filed within sixty days of the discovery of the

factual basis supporting the new claim for relief. W ith that as background, the

OCCA concluded as follow s:

             The motion before this Court avers that Petitioner filed a
      petition for writ of habeas corpus in the United States D istrict Court
      for the W estern District of Oklahoma and during the course of
      preparing for his habeas petition, counsel found that trial counsel had
      failed to investigate relevant mitigating evidence. Accordingly,
      Petitioner’s habeas counsel requested the federal court excuse
      Petitioner’s failure to raise the ineffective assistance of counsel issue
      earlier. The federal judge issued an order holding the habeas petition
      in abeyance pending exhaustion in state court of the unexhausted
      claim. Accordingly, petitioner’s counsel has requested this Court to
      grant him four months in which to review, investigate and prepare an
      adequate successor post-conviction application.
             Petitioner admits that the evidence he seeks to discover was
      readily available and discoverable by direct appeal counsel. The
      rules applicable to post-conviction, require filing within sixty days
      “from the date the previously unavailable legal or factual basis
      serving as the basis for a new issue is announced or discovered.”
      Petitioner’s claim that he should be excused from this rule as failure
      to review the potential claims would result in a miscarriage of justice
      is not persuasive considering his federal court filings and nearly
      three-year delay in filing for subsequent post-conviction relief.
             Petitioner’s motion for extension of time to file a successor
      application for post-conviction relief is hereby DENIED.

      As this passage makes crystal clear, the O CCA denied A nderson’s request

for additional time to prepare an adequate successor application for post-

                                         -15-
conviction relief because any such petition would be barred from review under the

terms of R ule 9.7(G )(3). Thus, there is a definitive ruling from the state court

that it will not review on the merits a successor application from Anderson raising

a claim that trial counsel was ineffective during the penalty phase for failing to

develop an adequate case in mitigation. Because Anderson was not required to

undertake a meaningless and utterly futile act to properly exhaust his state court

remedies, Beavers, 216 F.3d at 924 n.3; Bear, 173 F.3d at 785, this court rejects

Oklahoma’s contention that Anderson was required to nevertheless file a

successor application for post-conviction relief to exhaust his ineffective

assistance claim. Thus, like the district court, we conclude Anderson’s claim of

ineffective assistance of trial counsel during the penalty phase is exhausted.

      Having concluded Anderson’s ineffective assistance claim is exhausted,

this court must next consider whether the claim is nevertheless procedurally

barred. Clayton v. Gibson, 199 F.3d 1162, 1170 (10th Cir. 1999). The procedural

bar question is complicated, however, by Oklahoma’s dogged insistence that

Anderson’s ineffective assistance claim is unexhausted. Building on that faulty

foundation, Oklahoma further insists this court should apply an anticipatory

procedural bar 7 because Anderson’s claim of ineffective assistance of trial



      7
        “‘Anticipatory procedural bar’ occurs w hen the federal courts apply
procedural bar to an unexhausted claim that would be procedurally barred under
state law if the petitioner returned to state court to exhaust it.” M oore v.
                                                                         (continued...)

                                         -16-
counsel during the penalty phase of the trial would be procedurally barred under

Okla Stat. Ann tit. 22, §§ 1086, 1089(D )(2) 8 upon return to state court. See

Coleman v. Thom pson, 501 U.S. 722, 735 n.1 (1991).

      The problem w ith Oklahoma’s argument is that, as detailed above,

Anderson’s claim of ineffective assistance is exhausted precisely because the

OCCA has clearly and unequivocally stated the claim is barred by Rule 9.7(G )(3).

The state procedural rule actually identified and applied by the OCCA to bar

review of Anderson’s claim is entirely distinct from the rule identified by

Oklahoma as potentially applying on an anticipatory basis. Because Oklahoma

has never countenanced the possibility that Anderson’s ineffective assistance

claim is actually exhausted or wavered from its position that the state procedural

bars set out in §§ 1086 and 1089(D)(2) should apply anticipatorily, it has never

addressed the adequacy of Rule 9.7(G)(3), the procedural bar actually applied by

the OCCA.    But cf. Johnson, 486 U.S. at 587-89 (reviewing whether procedural

bar actually applied by state court was adequate to bar federal court habeas

review of a claim set out in 28 U.S.C. § 2254). As did the district court, we



      7
      (...continued)
Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002).
      8
       These rules, taken together, provide that all grounds for relief, both those
actually known and those which should have been known through the exercise of
due diligence, must be brought in an initial application for post-conviction relief.
Any claims not asserted in compliance with this rule are thereafter waived. Okla.
Stat. Ann. tit. 22, §§ 1086, 1089(D)(2).

                                        -17-
conclude Oklahoma’s refusal to defend the adequacy of the procedural bar

actually applied by the OCCA leaves this court with no choice but to proceed to

the merits of Anderson’s claim of ineffective assistance of trial counsel.

      “On habeas review, this court does not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).

The independence of Rule 9.7(G)(3) is not at issue in this case. Anderson has,

however, challenged the adequacy of that rule. “[T]o be adequate, a state rule of

procedural default must be applied evenhandedly in the vast majority of cases.”

Id.; see also Johnson, 486 U.S. at 587 (holding that a state procedural rule in not

“adequate” to bar federal habeas review unless the rule “is strictly or regularly

followed” (quotations omitted)). “Because the effective assistance of counsel lies

at the very foundation of the adversary system of criminal justice, this court has

been particularly vigilant in scrutinizing the adequacy of state rules of procedural

default which have the effect of barring federal habeas review of claims of

ineffective assistance of counsel.” English, 146 F.3d at 1259.

      Before the district court, Anderson cited multiple instances in which the

OCCA had declined to apply the procedural bar set out in Rule 9.7(G)(3) in

situations assertedly similar to his. Anderson also noted the OCCA had

previously held it had the power to grant relief, despite the plain time limits set

                                         -18-
out in Rule 9.7(G)(3), when to do so was necessary to avoid a miscarriage of

justice. Valdez v. State, 46 P.3d 703, 710-11 (Okla. Crim. App. 2002). Taken

together, Anderson asserted these two facts rendered Rule 9.7(G)(3) inadequate to

bar federal habeas review of his ineffective assistance claim. English, 146 F.3d at

1259 (to be adequate to bar federal habeas review, a state procedural rule “must

be applied evenhandedly in the vast majority of cases”); Gutierrez v. M oriarty,

922 F.2d 1464, 1470 (10th Cir. 1991) (holding that a state court’s assertion of

discretion to waive a procedural rule militates against concluding the rule is

adequate). Anderson reasserts these arguments on appeal.

      Because Anderson came forward with specific allegations as to the

inadequacy of Rule 9.7(G)(3), the burden shifted to Oklahoma to prove the

adequacy of the Rule to bar federal habeas review. Hooks, 184 F.3d at 1217.

Oklahoma has made no attempt, either before the district court or this court, to

defend the adequacy of Rule 9.7(G)(3). Accordingly, under the particular

circumstances of this case, we conclude Rule 9.7(G)(3) is not adequate to bar

federal habeas review of A nderson’s claim of ineffective assistance. Thus, we

proceed to the merits of the claim. 9



      9
       Even if Oklahoma w as correct in asserting that §§ 1086 and 1089(D)(2)
should apply anticipatorily, a substantial question would remain as to whether
those separate procedural rules are themselves adequate to bar review of
Anderson’s claim. In addition to considering a state procedural bar inadequate
when it is inconsistently applied, this court also considers a state procedural bar
                                                                        (continued...)

                                        -19-
      9
        (...continued)
inadequate if “it deprives a defendant of any meaningful review of his claims.”
Spears v. M ullin, 343 F.3d 1215, 1253-54 (10th Cir. 2003). A defendant has no
opportunity for meaningful review of an asserted ground for relief if the ground
could not have been raised within a state’s procedural rules. Here, Oklahoma’s
procedural rules bar post-conviction relief of any claims that were not raised on
direct appeal, see Okla. Stat. Ann. tit. 22, § 1086, as w ell as any claims that were
not raised in an initial application for post-conviction relief. See id. §§ 1086,
1089(D)(2). On the facts before this court, there is a serious question whether
Anderson could have raised his ineffective trial counsel argument within these
rules.
       Anderson argues persuasively that he could not have raised this ground on
direct appeal or in his first habeas petition because his appellate counsel operated
under a conflict of interest. This conflict of interest arose because A nderson’s
appellate and post-conviction counsel represented both Anderson and his co-
defendant, Thornburg. As a result of this co-representation, Anderson’s
appellate/post-conviction counsel were bound by a duty to Thornburg that
precluded them from effectively representing Anderson by, for example,
presenting a relative culpability theory based on Anderson’s limited mental
abilities.
       Two cases are instructive. See Cuyler v. Sullivan, 446 U.S. 335 (1980);
Jennings v. Purkett, 7 F.3d 779 (8th Cir. 1993). In Cuyler, the Supreme Court
held that a “conflict itself demonstrat[es] a denial of the right to have the
effective assistance of counsel.” 446 U.S. at 349 (quotation omitted). “Thus, a
defendant who shows that a conflict of interest actually affected the adequacy of
his representation need not demonstrate prejudice in order to obtain relief.” Id. at
349-50. There is no concomitant constitutional right to effective assistance of
post-conviction counsel, see Coleman v. Thom pson, 501 U.S. 722, 752 (1991), but
there is a constitutional right to effective counsel on direct appeal when a state
provides for an appeal. Because a defendant bears the risk of attorney error that
results in a procedural default at the post-conviction stage, ineffective assistance
of post-conviction counsel cannot excuse a state procedural bar. See id. at 752-
54. The Eighth Circuit, however, has held that “[a]n attorney’s conflict of
interest,” potentially including a post-conviction counsel’s conflict, “may be
external to his client’s defense, and thus a basis for finding cause” to excuse
procedural default. See Jennings, 7 F.3d at 782.
       Here, it appears A nderson’s appellate and post-conviction counsel actively
represented conflicting interests by representing both Anderson and Thornburg.
                                                                          (continued...)

                                         -20-
B. M erits

      A claim by a habeas petitioner “that counsel’s assistance was so defective

as to require reversal of a . . . death sentence has two components.” Strickland,

466 U.S. at 687. “To be entitled to relief, a petitioner must prove both that his

counsel’s performance was deficient and that the deficient performance

prejudiced his defense.” Bryan v. M ullin, 335 F.3d 1207, 1216 (10th Cir. 2003)

(en banc).

      To carry his burden of demonstrating that counsel’s performance was
      deficient, a petitioner must show that counsel made errors so serious
      that counsel was not functioning as the counsel guaranteed the
      defendant by the Sixth Amendment. To carry his burden of
      demonstrating prejudice, a petitioner must show that counsel’s errors
      were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

Id. (quotations and citations omitted). This court is “particularly vigilant” in

ensuring the right to effective assistance of counsel when a defendant is subject to

a sentence of death. Smith v. M ullin, 379 F.3d 919, 938 (10th Cir. 2004); see also

William son v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997) (“In assessing



      9
        (...continued)
This conflict of interest may very well have prevented Anderson from raising his
ineffective trial counsel claim on direct appeal or in an application for post-
conviction relief and, consequently, within Oklahoma’s procedural rules.
Therefore, a strong argument can be made that those rules deprived Anderson of
any meaningful review of that claim. This court need not definitively decide this
issue, however, because, as noted above, the procedural rule actually applied by
the OCCA is not effective to bar review of Anderson’s claim.

                                         -21-
counsel’s conduct, we are mindful of the Supreme Court’s observation that ‘[o]ur

duty to search for constitutional error w ith painstaking care is never more

exacting than it is in a capital case.’” (quoting Burger v. Kemp, 483 U.S. 776, 785

(1987)).

         Because Anderson’s ineffective assistance claim was not decided on the

merits by the OCCA, and because it is not procedurally barred, federal habeas

review of the claim is de novo. Torres v. Lytle, 461 F.3d 1303, 1311 (10th Cir.

2006). Upon de novo review, the district court concluded that although

Anderson’s trial counsel rendered constitutionally deficient performance during

the penalty phase of the trial, Anderson did not suffer prejudice as a result of the

deficient performance. “[T]his court . . . reviews de novo whether counsel’s

performance was legally deficient and whether the deficiencies prejudiced the

[petitioner].” Bryan, 335 F.3d at 1216. As the district court did not conduct an

evidentiary hearing, but instead decided the case on the record presented by the

parties, this court independently reviews the facts relating to counsel’s

performance and prejudice. Allen v. M ullin, 368 F.3d 1220, 1234 (10th Cir.

2004).

         1. Performance

         “The sentencing stage is the most critical phase of a death penalty case.

Any competent counsel knows the importance of thoroughly investigating and




                                           -22-
presenting mitigating evidence.” Romano v. Gibson, 239 F.3d 1156, 1180 (10th

Cir. 2001). To perform adequately in a capital case, trial counsel must undertake

“‘to discover all reasonably available mitigating evidence and evidence to rebut

any aggravating evidence that may be introduced by the prosecutor.’” Wiggins v.

Smith, 539 U.S. 510, 524 (2003) (quoting ABA Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989) [hereinafter

1989 Guidelines]); see also ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases 10.7(A) (2003) [hereinafter 2003

Guidelines]. Counsel should consider, inter alia, medical history, educational

history, social and family history, religious and cultural influences, and

employment. See 2003 Guidelines 10.7, Commentary.

      Anderson contends trial counsel wholly failed to investigate potential

mitigation evidence, instead focusing almost exclusively on the guilt phase of the

trial. The result, according to Anderson was that trial counsel failed to adduce at

trial substantial amounts of mitigating evidence and failed to adequately rebut the

case in aggravation presented by the prosecution. The district court agreed,

concluding “the investigation conducted in preparation for the second phase of

[Anderson’s] trial fell below prevailing professional norms.” Anderson, No. C IV -

01-177-M , slip op. at 48. “[C]ognizant of the overwhelming importance of the

role mitigation evidence plays in the just imposition of the death penalty,” Smith,

379 F.3d at 939, this court agrees with the district court and concludes trial

                                         -23-
counsel’s failure to investigate and discover readily available mitigation evidence

amounted to constitutionally deficient performance.

      Although trial counsel was provided with two investigators, one of whom

was dedicated to investigating the case in mitigation, the evidence before the

district court reveals trial counsel directed his attention almost exclusively to the

guilt phase of the trial. Dennis Berglan, the guilt phase investigator, met with

trial counsel on many occasions, detailed his investigation in extensive reports to

trial counsel, and personally met with Anderson on numerous occasions. In

contrast, James Grace, the penalty phase investigator, spent only twenty-three

hours in substantive investigation, all of which was undertaken in the month

before trial. But see 2003 Guidelines 10.7 Commentary (“The mitigation

investigation should begin as quickly as possible, because it may affect the

investigation of first phase defenses . . . , decisions about the need for expert

evaluations . . . , motion practice, and plea negotiations.”). Trial counsel did not

have Grace interview Anderson. 10 But see id. (“[I]mmediately upon counsel’s



      10
       Grace found this aspect of his investigation particularly troubling.
According to Grace,
            In order to obtain [] life history information, it is essential to
     conduct a number of detailed meetings with the client. Initially and
     throughout the course of the case, it is important to develop and
     maintain a rapport with the client to instill trust. The development of
     this trust is critical in order for the mitigation investigator to draw
     out vital information about the client’s upbringing, which often
     includes sensitive and sometimes embarrassing facts that are relevant
                                                                         (continued...)

                                         -24-
entry into the case appropriate member(s) of the defense teams should meet with

the client” to begin to build a case in mitigation). Grace did not have access to

life-history information, school records, or medical records. But see id.

(specifically noting the relevance and importance of each of these avenues of

investigation). Anderson was not evaluated by any mental health or other expert

qualified to ascertain whether Anderson suffered from neurological or other

deficits that would mitigate his moral culpability. Smith, 379 F.3d at 942 (noting

the “vital importance” of mental health evidence “to the jury’s decision at the

punishment phase” (quoting 2003 Guidelines 1.1, 4.1, 10.4, 10.7, 10.11)).

Ultimately, based on his extensive experience in conducting mitigation

investigations in death penalty cases, Grace concluded he had “never had an

experience like [he] had while working on [Anderson’s] case. The mitigation

investigation that [he] was conducted to do by [trial counsel] was minimal at best

and in [his] opinion was wholly inadequate.”

      The evidence submitted to the district court demonstrates mitigation

evidence of the kind and magnitude identified as particularly important in the

cases and 1989 and 2003 Guidelines w as readily available and discoverable

through a reasonable investigation. The record developed on habeas review

reveals as follow s:



      10
        (...continued)
      to the client’s character and personality.

                                        -25-
      1. Family History. Anderson was raised in an environment of neglect and

abuse. He was the twelfth of thirteen children. By the time he was born, his

parents lacked interest in raising their children. Instead, they turned to their own

addictions to alcohol, leaving Anderson’s older siblings to provide what care they

could. Anderson’s mother was abusive to both her children and husband. To

discipline the children, including Anderson, she w ould “w hip [them ] with hangers

and extension cords.” Anderson’s mother and step-father engaged in “horrible

drunken fights” in front of the children. Anderson’s mother, who was eleven

years younger than Anderson’s father, eventually grew bored of her role as

homemaker and began having illicit affairs in the family home. M en from the

nearby Air Force base, referred to as the Anderson children’s “uncles,” w ould

come to the family home to have sex with Anderson’s mother, while A nderson’s

father w as at work. The illicit affairs led all the Anderson children, from an early

age, to question their parentage; these questions undermined the children’s sense

of security and self-esteem.

      2. M ental Health History. Anderson suffers from brain damage. He is

“borderline mentally defective” with full scale IQ scores in the 70s. Because of

his brain damage, Anderson functions below 97 to 98% of the general population.

Anderson’s brain damage likely resulted from multiple etiologies: (a) abuse of

inhalants by sniffing paint as a child; (b) abuse of alcohol from the time he w as 9

years old; (c) abuse of marijuana and other drugs from the time he w as 9 years

                                         -26-
old; (d) chronic addiction to and abuse of methamphetamine; and (e) repeated

head injuries as a child and as an adult, a number of which resulted in periods of

unconsciousness. Anderson’s brain deficits affect his reasoning, problem solving,

and judgment. These deficits can be perceived by lay persons as “meanness” or

antisocial behavior, but with expert evaluation and explanation are properly

explained as deriving from disruption and impairments to the nervous system.

      3. Drug Usage. Use of methamphetamine would serve to exacerbate

Anderson’s existing deficits and impairments. Anderson, however, attempted to

overcome his addiction to methamphetamine twice without the benefit of formal

treatment or counseling. One of these episodes came about as part of a serious

religious conversion and was in association with consideration on the part of

Anderson about becoming a preacher. Nevertheless, his co-dependent

relationship with his wife, who never gave up her use of methamphetamine,

eventually caused him to relapse into drug abuse.

      As the various iterations of the ABA Guidelines and Wiggins make clear,

this is just the kind of mitigation evidence trial counsel is obligated to investigate

and develop as part of building an effective case in mitigation during the penalty

phase of a trial. 2003 Guidelines 10.7; Wiggins, 539 U.S. at 522, 524. Berglan’s

and Grace’s declarations reveal, however, that trial counsel undertook only the

most rudimentary investigation of Anderson’s background, choosing to focus his

investigatory efforts almost exclusively on the guilt phase of the trial. As a

                                          -27-
result, counsel was unable to muster an adequate defense to the prosecution’s case

in aggravation. Instead, trial counsel was limited to presenting to the jury: (1)

evidence that although Anderson had a drug and alcohol problem, he had worked

and provided for his family; (2) he was the son of a “good woman” and had a

family that loved him; (3) his daughter loved him and he could be of help to her

from prison. Thus, rather than offering the jury a potential explanation for

Anderson’s actions relating to the murders he participated in, trial counsel’s case

in mitigation was limited to a simple plea for mercy. Smith, 379 F.3d at 943

(noting importance of mitigation evidence that explains to the jury why a

defendant acted as he did); see also Williams v. Taylor, 529 U.S. 362, 415 (2000)

(O’Connor, J., concurring) (noting importance of presenting case in mitigation

centered on a defendant’s “unique personal circumstances,” as opposed to a

generic request for mercy). Like the district court, we have no difficulty

concluding trial counsel’s failure to investigate and obtain the readily available

evidence in mitigation set out above, and the concomitant necessity of presenting

only the most skeletal case in mitigation, fell well below the prevailing

professional norms and amounted to deficient performance.

      In response, Oklahoma simply asserts that because Anderson did not

proffer an affidavit from trial counsel concerning what investigation might have

been conducted apart from that performed by Grace, Anderson failed to overcome

the presumption that trial counsel’s case in mitigation fell within the wide range

                                         -28-
of reasonable professional assistance. 11 Oklahoma’s assertion is wrong both as a

m atter of fact and as a matter of law.

      The Supreme Court has squarely rejected the notion that, when counsel has

“som e information with respect to petitioner’s background,” counsel has

necessarily fulfilled his constitutional duty to investigate and present a case in

mitigation. Wiggins, 539 U.S. at 527. M oreover, although Oklahoma is quite

correct in asserting that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable,”

Strickland, 466 U.S. at 690, the question in this particular case is not whether trial

counsel made a tactical or strategic decision not to include the omitted mitigation

evidence at trial, but rather whether “the investigation supporting counsel’s

decision . . . was itself reasonable.” Wiggins, 539 U.S. at 523.




      11
        Surprisingly, the entirety of Oklahoma’s briefing on the question of trial
counsel’s performance amounts to less than a single paragraph. According to
Oklahoma,
      [Anderson’s] assertion that there was an inadequate investigation is
      speculation where he did not proffer an affidavit from trial counsel
      concerning what investigation he conducted apart from that done by
      his investigator. He cannot show that lack of sufficient information
      rendered any strategic decisions as to what mitigating evidence to
      present deficient performance, especially where he has the burden to
      overcome the strong presumption that counsel’s strategy and tactics
      fell w ithin the wide range of reasonable professional assistance.
      Strickland, 466 U.S. at 689.
Appellant’s Br. at 27.

                                          -29-
      The only evidence in the record is that Anderson’s family background,

mental health, and neurological health were never investigated by trial counsel.

As noted above, Grace’s affidavit details the extremely limited investigation he

conducted on behalf of counsel in the month before the trial. Grace’s declaration

does not, however, stand alone. The record also contains a declaration by Kim

M arks, an investigator w ith the Federal Public D efender’s Office in the W estern

District of Oklahoma. M arks’ declaration demonstrates he has extensive

experience in investigating mitigating evidence in death penalty cases. M arks

examined trial counsel’s records; that examination revealed no educational

records, medical records, or psychological evaluations w ere gathered in

preparation for trial. Taken together, the declarations of Grace and M arks make

clear that trial counsel simply did not undertake an investigation into potential

evidence in mitigation sufficient to satisfy the prevailing norms in the profession

as set out in the 1989 or 2003 Guidelines. Trial counsel did not undertake a

strategic decision in this case to omit the mitigation evidence identified above;

counsel simply did not investigate and therefore did not know such evidence was

available. See Hooper v. M ullin, 314 F.3d 1162, 1170-71 (10th Cir. 2002)

(failure to pursue reasonable avenues of investigation without any idea of what

the investigation might reveal was not an informed strategic decision and required

relief from sentence of death); Pavel v. Hollins, 261 F.3d 210, 218 n.11 (2d Cir.

2001) (collecting cases and discussing how decisions made in ignorance of

                                         -30-
relevant facts and law cannot be characterized as strategic under Strickland);

Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical decisions must

be made in the context of a reasonable amount of investigation, not in a

vacuum.”); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (noting that

the “usual deference to tactical decisions is not relevant” when the decisions are

based on “information that was faulty because of . . . ineffective investigatory

steps”).

      2. Prejudice

      Based on the strength of the state’s case, Anderson’s convictions for

participating in three murders, and the jury’s findings of the existence of three

aggravating circumstances, the district court concluded Anderson was not

prejudiced by trial counsel’s failure to investigate and present an adequate case in

mitigation during the penalty phase of the trial.

      In considering Strickland’s prejudice prong, “w e evaluate the totality
      of the evidence— both that adduced at trial, and the evidence adduced
      in habeas proceedings.” Wiggins, 123 S. Ct. at 2543 (italics,
      quotations, and citations omitted). In order to grant relief, we must
      discern a reasonable probability that the jury would have concluded
      the “balance of aggravating and mitigating circumstances did not
      warrant death.” M ayes, 210 F.3d at 1290. A “reasonable
      probability” is less than a preponderance of the evidence, but
      “sufficient to undermine confidence in the outcome.” Fisher, 282
      F.3d at 1307 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052).

Smith, 379 F.3d at 942. Taking guidance from the Supreme Court’s decisions in

Wiggins and William s, and from this court’s decision in Smith, we disagree with



                                         -31-
the district court and conclude Anderson has demonstrated a reasonable

probability that but for trial counsel’s deficient performance, the outcome of the

penalty phase would have been different.

      There is no doubt that the multiple murders in this case were callous and

brutal. The district court was also correct in noting that the case against

Anderson on the question of guilt was strong, and included information that

Anderson had corresponded with his wife about keeping potential witnesses away

from the trial or “taking care” of them. In fact, the strength of the prosecution’s

case during the guilt phase left no room for the question of residual doubt during

the penalty phase. In addition to all of the first stage evidence, the prosecution

adduced testimony during the penalty phase that while incarcerated awaiting trial

on the murder charges, Anderson had obtained illegal drugs and had been found

in possession of a knife. It is similarly true that among the three murders, the

jury found the existence of three aggravating circumstances: (1) the murders were

especially heinous, atrocious, or cruel; (2) there was a probability Anderson

would comm it future criminal acts of violence that would constitute a continuing

threat to society; and (3) that the murders of Smith and Shepard were committed

for the purpose of avoiding or preventing a lawful arrest or prosecution.

      Against this backdrop, trial counsel mounted an extraordinarily limited case

in mitigation. As noted above, trial counsel adduced the testimony of A nderson’s

family and co-workers to support the theory that Anderson was a kind, hard-

                                         -32-
working, normal man who could be of some help to his daughter if his life w ere

spared. Unfortunately, the case in mitigation presented by trial counsel played

into the prosecution’s theory that the only explanation for the murders was that

Anderson was simply an “evil” man. The prosecution seized on A nderson’s case

in mitigation to assert during closing arguments that there was no excuse for

Anderson’s conduct because he grew up in a “good family” and was never abused

as a child. Thus, relying on the exceedingly limited nature of trial counsel’s case

in mitigation, the prosecution was able to argue convincingly to the jury that there

was nothing in the case to diminish A nderson’s moral culpability for the murders.

      As set out at length above, however, there existed readily available

evidence which could have both explained to the jury the reasons Anderson was

predisposed to act in concert with Thornburg and Embrey on the night of the

murders and demonstrated Anderson was less morally culpable than the average

defendant for committing the murders. In particular, Anderson grew up in

poverty, the twelfth child of a physically and emotionally abusive mother.

Anderson’s mother’s disregard for her marriage and inattention to her children

created “dysfunctional patterns in their development, including a pattern of

dropping out of school, a pattern of leaving home at an early age, and a pattern of

teenage pregnancy and/or marriage before the age of 18.” The jury would have

learned that Anderson’s life followed each of these patterns. The evidence

developed by habeas counsel demonstrates Anderson suffers from brain damage;

                                        -33-
is “borderline mentally defective”; and functions below the bottom two percent of

the general population. Anderson was only able to complete the eighth grade of

school. The most significant damage to Anderson’s brain is in the area of the

frontal lobe, the area of the brain that affects reasoning, problem solving, and

judgment. Anderson has suffered chronic drug addiction, which addiction began

at the age of nine with the use of alcohol, marijuana, and inhalants and ultimately

progressed to the use of methamphetamine. The use of amphetamines exacerbates

Anderson’s mental deficits and impairments. Anderson has tried to overcome his

addiction to methamphetamine, but without the support of his w ife those efforts

ultimately failed. Despite these serious impairments, Anderson had no history of

criminal violence prior to the murders in question. Likewise, his family

considered him a loving man, who always cared for his family and children and

worked hard to support them.

      In Smith, this court noted that this type of evidence “is exactly the sort of

evidence that garners the most sympathy from jurors.” 379 F.3d at 942 (citing

both empirical evidence and case law). The Supreme Court has similarly noted

that evidence of borderline mental retardation and childhood poverty and abuse

are highly relevant to the question of moral culpability. Williams, 529 U.S. at

398; see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about the

defendant’s background and character is relevant because of the belief, long held

by this society, that defendants who comm it criminal acts that are attributable to a

                                         -34-
disadvantaged background, or to emotional and mental problems may be less

culpable than defendants who have no such excuse.” (quotation omitted)),

overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Wiggins,

539 U.S. at 535 (quoting Penry). Evidence of the type set out above serves to

humanize a defendant and explain why an otherwise kind and loving family man

can come to participate in a violent, murderous event. See Smith, 379 F.3d at

943. Accordingly, this court cannot overstate the importance of the type of

evidence that was available in this case but was never presented to the jury.

      In this particular case, the absence of this readily available mitigation

evidence left the jury with no explanation for the murders other than the

prosecution’s assertion Anderson was “evil.” Although the case against Anderson

was strong and the murders in this case were horrific, courts have not hesitated to

grant relief in similar circumstances where the absence of available mitigation

evidence left the jury with a “pitifully incomplete” picture of the defendant. Id.

at 944 (discussing William s and Wiggins). Had the jury been presented a

complete picture of Anderson’s background and history, there is a reasonable

probability at least one juror would have struck a different balance between the

mitigating and aggravating factors. See Okla. Stat. tit. 21, § 701.11 (providing

that the jury must be unanimous to impose the death penalty). Accordingly,

Anderson has carried his burden of demonstrating he received ineffective




                                         -35-
assistance of counsel during the sentencing phase of his trial and is entitled to

relief under Strickland, 466 U.S. at 694.



                                IV . C ON CLU SIO N

      The order of the district court denying Anderson’s writ of habeas corpus as

to his death sentence is hereby REVERSED. The matter is remanded to the

district court to grant the writ with regard to Anderson’s death sentence and order

Oklahoma to resentence Anderson within a reasonable time of the issuance of the

judgment.




                                         -36-