Gray v. Branker

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

WILLIAM ROBERT GRAY, JR., 
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden,  No. 06-29
Central Prison, Raleigh, North
Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:02-hc-00335-BO)

Argued: September 26, 2007

Decided: June 24, 2008

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Judge Gregory joined.
Judge Duncan wrote a separate opinion concurring in part and dis-
senting in part.

COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant. Ste-
ven Mark Arbogast, NORTH CAROLINA DEPARTMENT OF
2 GRAY v. BRANKER
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Paul
M. Green, Durham, North Carolina, for Appellant. Roy Cooper,
Attorney General of North Carolina, Raleigh, North Carolina, for
Appellee.

OPINION

MICHAEL, Circuit Judge:

William Robert Gray, Jr., was convicted of first degree murder and
sentenced to death in North Carolina state court for the 1992 murder
of his estranged wife. After the North Carolina courts rejected his
direct appeal and denied post-conviction relief, Gray filed a petition
for a writ of habeas corpus in U.S. district court, asserting several
ineffective assistance of counsel claims. The district court denied all
claims. We reverse in part, concluding that Gray is entitled to a new
sentencing proceeding. This result is required because the North Car-
olina post-conviction court’s denial of Gray’s claim of ineffective
assistance of counsel in the sentencing phase was contrary to, and an
unreasonable application of, the standards set out in Strickland v.
Washington, 466 U.S. 668 (1984). See 28 U.S.C. § 2254(d). Counsel
rendered ineffective assistance by failing to investigate and develop,
for sentencing purposes, evidence that Gray suffered from a severe
mental illness, and it is reasonably probable that this failure preju-
diced the outcome at sentencing. We conclude that the district court
properly rejected Gray’s claim that he was denied effective assistance
of counsel because his lead lawyer was a potential defense witness
and therefore labored under a conflict of interest. Finally, we con-
clude that the district court correctly held that two claims Gray
asserted in an amendment to his federal habeas petition were barred
by the statute of limitations.

I.

Gray was a dentist in Kinston, North Carolina. In mid-February
1992 his wife of twenty-two years, Roslyn Gray, told him that she
intended to move out of their home and seek a divorce. The two sepa-
rated in April of that year, and a contentious divorce proceeding
 GRAY v. BRANKER 3
ensued with bitter disputes over child custody and property distribu-
tion. Gray, who remained in the home after the separation, was
granted temporary custody of the couple’s two children, an eleven-
year-old son and an eight-year-old daughter.

In the months after Mrs. Gray announced her intentions and sued
for divorce, Gray became increasingly distraught, emotional, and dis-
turbed, according to his friends and associates. Gray "didn’t have a
grasp of what was going on," J.A. 822, and "didn’t appear to be in his
right mind," J.A. 802. For instance, Gray made "very agitated" tele-
phone calls and visits to the office of Mrs. Gray’s gynecologist, Dr.
Marshall Jay Barker, who also had training in psychology. J.A. 782.
In Dr. Barker’s "medical opinion" Gray suffered from a "behavioral
aberration and psychological problem" that included obsessive com-
pulsion. J.A. 784, 224. The Grays briefly sought marital counseling,
but the counselor withdrew because of her alarm about Gray’s chal-
lenging and confrontational conduct. Mrs. Gray’s lawyer sought a
court order for a mental assessment of Gray, relying on affidavits
from Dr. Barker and the marital counselor. Gray’s divorce lawyer
withdrew from the case, citing "irreconcilable differences" with Gray
and difficulty communicating with him. J.A. 232. Gray retained his
second divorce lawyer, Bob Worthington, on November 13, 1992.

Mrs. Gray had visitation privileges with the children at times speci-
fied by court order. The events that led to Gray’s conviction for the
murder of Mrs. Gray occurred at the end of the last visitation and are
described as follows by the North Carolina Supreme Court:

On [the evening of] 24 November 1992, [Mrs. Gray] went
to [Gray’s] house to leave their children after they had vis-
ited with her. [Gray] went outside and got into [Mrs. Gray’s]
Jeep. An eyewitness, who had been jogging on the street in
front of [Gray’s] house, testified that he observed a Jeep in
the street. He heard screaming and yelling coming from the
Jeep. He saw a woman break from the Jeep and run up the
driveway. The man, whom the witness identified as [Gray],
also ran from the vehicle. [Gray] then tackled the woman
and straddled her. The two people were on the ground strug-
gling, with [Gray] on top of [Mrs. Gray]. The witness
stopped and asked what was going on, and [Gray] told him
4 GRAY v. BRANKER
to leave. [Mrs. Gray] said, "Mister, please don’t leave. If
you leave, he’ll kill me." The jogger then heard a shot, and
[Gray] ran behind the house.

[Mrs. Gray] was shot in the head. She died from this
wound. [She] also suffered injuries from a stun-gun and a
beating apparently with the butt of a pistol.

State v. Gray, 491 S.E.2d 538, 543-44 (N.C. 1997) (opinion on direct
review).

The police arrested Gray later that night. At Gray’s request, Wor-
thington, his divorce lawyer hired eleven days earlier, was called to
the police station. After Worthington arrived, he and Gray talked pri-
vately in an interview room, and Gray said he had been in the bathtub
at the time of the shooting. Worthington and Gray were interrupted
by a detective who asked whether Gray would submit to hand wipings
for a gunshot residue test (a paraffin test). The detective left, and
Worthington recommended that Gray submit to the test; Gray agreed
and then asked for some water. Worthington went to the door and
passed Gray’s request to an officer, who brought Gray a soda can full
of water. Gray, alone again with Worthington, used the water to wash
his hands as Worthington watched. Worthington’s instant reaction
was, "Oh, shit," but he nevertheless allowed Gray to submit to the
paraffin test. J.A. 1700. Shortly thereafter, at Worthington’s urging,
Gray gave a statement to the police, asserting his bathtub alibi.

In the following week Gray formally hired Worthington to repre-
sent him on the charge of first-degree murder. Worthington had never
handled a capital case and had been involved in only one first-degree
murder case. About fifty percent of his practice involved criminal
cases.

Signs of Gray’s unstable mental and emotional condition persisted
after he was incarcerated in the Lenoir County Jail. He was placed on
suicide watch, and the jail matron checked on him every fifteen min-
utes, noting in her log that he was "VERY depressed." J.A. 889-90.
Gray told the matron that he had not slept for the previous two
months. During his first week in jail, Gray, who seemed unable to
focus, fainted during a visit by a friend. At the urging of the chief
 GRAY v. BRANKER 5
jailer, Worthington filed a motion on November 30, 1993, asking the
court to commit Gray for an evaluation of his capacity to proceed in
the case. Worthington noted in the motion that Gray "appears in [a]
state of shock and unable to appreciate the gravity of the situation."
J.A. 240. The motion was granted immediately, and the next day,
December 1, 1993, Gray was transferred to Dorothea Dix Hospital,
a state psychiatric facility. As Gray was about to be moved, Wor-
thington advised him to "be careful about what he said" at Dorothea
Dix, and Gray responded that he understood. J.A. 1659.

At Dorothea Dix a forensic psychiatrist, Patricio Lara, M.D., evalu-
ated Gray with respect to his capacity to proceed on the pending
charge of murder. Dr. Lara based his evaluation on interviews with
Gray, observations of his behavior, psychological testing, and a physi-
cal examination. Dr. Lara also had certain information from Wor-
thington, the arresting officer, the jail, and Gray’s friend, Donald
Hollowell. As Dr. Lara emphasized, the information he was provided
about Gray’s "condition prior to the incident in question [was] quite
limited." J.A. 46. Indeed, Worthington did not even give Dr. Lara the
affidavits, contained in Gray’s divorce file, of Dr. Barker (noting
Gray’s behavioral aberration and psychological problem) and the
marital counselor (noting alarm about Gray’s confrontational con-
duct). Dr. Lara’s report described Gray as uncooperative and guarded.
Nonetheless, Dr. Lara noted that Gray had been under ongoing stress
prior to the shooting and that the "magnitude" of the stress "may have
contributed to regression in behavior and reductions in impulse con-
trol." J.A. 45. While Dr. Lara found Gray competent to stand trial, he
diagnosed Gray with "adjustment disorder with mixed disturbance of
emotions and conduct," DSM (Diagnostic and Statistical Manual of
Mental Disorders) category 309.40. J.A. 45. There was also evidence
of "narcissistic traits with some features of paranoid nature." J.A. 44.
Dr. Lara strongly suggested psychiatric counseling for Gray, stating
that medication might become necessary. At the end of his report, Dr.
Lara offered further assistance in Gray’s case. If Dr. Lara could be
provided additional information about "[Gray’s] functioning and con-
dition prior to [the incident in question]," he would endeavor to "ex-
pand [his] opinions" about Gray’s condition at the time of the
incident. J.A. 46.

Gray was returned to the Lenoir County Jail on January 6, 1993,
after spending five weeks at Dorothea Dix. Copies of Dr. Lara’s
6 GRAY v. BRANKER
report were provided to Worthington, Gray, and the court. Worthing-
ton took particular note of Dr. Lara’s statement that the magnitude of
stress in Gray’s life prior to the shooting may have contributed to
regressive behavior and loss of impulse control. As a result, Wor-
thington promptly suggested to Gray that they hire an independent
psychiatrist for further evaluation. Gray refused, telling Worthington
"not to spend another f’ing penny on this trial, that he didn’t need a
psychiatrist," and that "[t]here was nothing wrong with him." J.A.
1666. After this one conversation, which occurred prior to Gray’s
indictment, Worthington never again talked with Gray about investi-
gating mental health evidence. Gray’s friends continued to describe
him as irrational and "damaged emotionally." J.A. 884. Gray was suf-
fering from anxiety attacks, and on January 22, 1993, he had another
fainting spell. He was temporarily transferred to a state prison, and
when he was returned to the county jail on January 27, he was
assigned to the juvenile cellblock, where Worthington requested that
he be kept "[d]ue to his physical and mental condition." J.A. 263.

On April 6, 1993, at Worthington’s suggestion, Gray retained a
second lawyer, Dal Wooten, to assist in his defense. Like Worthing-
ton, Wooten had never represented a client in a capital case. Wooten
read Dr. Lara’s report, but he saw nothing in it to indicate that mental
health evidence should be considered. Indeed, he and Worthington
never discussed with each other the possibility of presenting mental
health evidence. On May 10, 1993, Gray was indicted on a charge of
first degree murder. That week, Gray placed all of his assets in an
irrevocable trust for his children.

On October 12, 1993, about two weeks before Gray’s trial began,
Worthington was shot and wounded in the shoulder by his wife dur-
ing a domestic dispute. The police charged Mrs. Worthington with
assault with a deadly weapon with intent to kill, inflicting serious
injury. Worthington was treated at a local hospital, and his shooting
and Gray’s case were linked in media coverage. Worthington told
Gray that his (Worthington’s) shooting was an accident, and Gray
consented to Worthington’s continuing representation.

Defense counsel relied on Gray’s dubious alibi for eleven months.
Then, nine days before trial, on October 22, 1993, Gray admitted to
his lawyers that Mrs. Gray was shot during the altercation in the
 GRAY v. BRANKER 7
driveway. Gray’s trial began on November 1, 1993. In the guilt phase
the state presented evidence about Gray’s false alibi and evidence that
he had physically and psychologically abused Mrs. Gray both before
and after the separation. There was eyewitness testimony about the
driveway altercation that ended with Mrs. Gray’s death. The state’s
forensic pathologist testified that Mrs. Gray died from a bullet wound
to the head, that a pair of marks on her face could have come from
contact with a stun gun, and that a blunt force injury to her face was
consistent with a blow from the butt end of a handgun. Gray testified
in his own defense. He said that Mrs. Gray pointed a pistol at him
and, when he pushed it away, it discharged, striking her in the head.
Gray said he lied to the police about being in the bathtub because he
did not think anyone would believe the truth. The defense presented
no mental health evidence. The jury convicted Gray of first degree
murder.

When the case reached the sentencing phase on December 14,
1993, the presentation of evidence took less than a day. The state
offered one witness in its direct case: a court clerk testified that, at the
time of Mrs. Gray’s death, Gray was subject to four outstanding mis-
demeanor warrants — obtained by Mrs. Gray on June 26, 1992 — for
attempted assault with a deadly weapon, communicating threats,
assault on a female, and false imprisonment. A recreation director tes-
tified in rebuttal that Gray was once removed as a Little League coach
because he yelled at the players. The defense presented six character
witnesses. Gray’s son testified that he was a good, dedicated, and
involved father. Another witness testified on direct that Gray was a
committed and supportive husband and on cross that Gray was dis-
traught by his separation from Mrs. Gray and his efforts to manage
a household. Others testified that Gray was a good son to his ailing
mother and a committed Little League coach. Again, Gray’s counsel
introduced no mental health evidence through either lay or expert tes-
timony.

The jury recommended a death sentence on the basis of three
aggravating factors: (1) the murder was especially heinous, atrocious,
or cruel; (2) it was committed to disrupt or hinder a governmental
function (a court order compelling discovery in the divorce case); and
(3) it was committed because of Mrs. Gray’s exercise of her official
duty as a witness (swearing out warrants against Gray and being a
8 GRAY v. BRANKER
potential witness with respect to the charges). See N.C. Gen. Stat.
§ 15A-2000(e)(7), (e)(8), and (e)(9). The jury unanimously rejected
two mitigating factors relating to mental health: that the offense was
committed while Gray was under the influence of mental or emotional
disturbance and that Gray’s capacity to conform his conduct to the
requirements of law was impaired. See id. § 15A-2000(f)(2) & (f)(6).
Gray was sentenced to death.

After sentencing the trial court found Gray to be indigent and
appointed new lawyers for his appeal. The Supreme Court of North
Carolina affirmed Gray’s conviction and sentence, State v. Gray, 491
S.E.2d 538 (1997), and the U.S. Supreme Court denied certiorari,
Gray v. North Carolina, 523 U.S. 1031 (1998). Gray filed a motion
for appropriate relief (MAR) in the North Carolina trial court, alleg-
ing various claims of ineffective assistance of trial counsel, conflict
of interest on the part of trial counsel, and ineffective assistance of
appellate counsel. In particular, Gray alleged that his trial counsel
were ineffective in failing to engage an expert to assist in investigat-
ing, developing, and presenting mental health evidence in mitigation
at sentencing. At the MAR hearing Gray introduced the testimony and
affidavit of psychiatrist James Bellard, M.D. Dr. Bellard, who inter-
viewed Gray twice in January 1999 and reviewed excerpts of the trial
record, testified that at the time of the offense Gray had a paranoid
personality disorder with a severity of eight on a scale of one to ten.
According to Dr. Bellard, Gray was in considerable emotional distress
at the time, and his ability to function was impaired by his personality
disorder and exacerbated by the stress of his marital discord. Dr. Bel-
lard opined that, while Gray could conform his conduct to the require-
ments of law, his capacity to do so was significantly impaired. The
MAR court denied relief on December 1, 2000, and the Supreme
Court of North Carolina later denied certiorari.

Next, in May 2002 Gray filed a petition for a writ of habeas corpus
in U.S. district court. Two years later Gray amended his petition to
include additional claims. The district court granted the state’s motion
for summary judgment, rejecting Gray’s initial claims on the merits
and his amendments on statute of limitations grounds under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U.S.C. § 2244(d)(1). Gray appeals the district court’s order, arguing
that the writ should have been awarded on two bases: the ineffective
 GRAY v. BRANKER 9
assistance of trial counsel in failing to investigate and develop, for
sentencing purposes, evidence of Gray’s mental impairment, and lead
counsel’s failure to withdraw as a result of a conflict of interest (Wor-
thington was a potential witness). Gray also argues that the writ
should have been granted on two claims (asserted by amendment) that
the district court rejected as time barred: that Worthington labored
under a conflict because of his wife’s prosecution for domestic assault
by the same authorities prosecuting Gray, and that trial counsel were
ineffective in failing to present a forensic pathologist for the defense.
Certificates of appealability were granted on these issues.

II.

Our review is de novo when a district court’s decision on a petition
for a writ of habeas corpus is based on the state court record. Williams
v. Ozmint, 494 F.3d 478, 483 (4th Cir. 2007). According to AEDPA,
a federal court should not grant habeas relief on any claim adjudicated
on the merits in state court unless the adjudication resulted in a deci-
sion that (1) "was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States;" or (2) "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C. § 2254(d). As the Supreme Court
explained in Williams v. Taylor:

Under the "contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion oppo-
site to that reached by [the Supreme] Court on a question of
law . . . . Under the "unreasonable application" clause, a fed-
eral habeas court may grant the writ if the state court identi-
fies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.

529 U.S. 362, 412-13 (2000). State court factual determinations are
presumed to be correct and may be rebutted only by clear and con-
vincing evidence. 28 U.S.C. § 2254(e)(1).

III.

Gray contends first that he was denied his Sixth Amendment right
to counsel because his lawyers failed to investigate and develop (for
10 GRAY v. BRANKER
sentencing) mitigating evidence about his impaired mental condition
at the time of the offense. To prevail on an ineffective assistance
claim, a petitioner must establish (1) that counsel’s performance was
deficient and (2) that the deficiency prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). We conclude, as explained
below, that the North Carolina MAR court engaged in an unreason-
able application of Supreme Court precedent concerning both of
Strickland’s components. Furthermore, in assessing prejudice, the
MAR court held Gray to an inappropriately high standard of proof
that was contrary to Strickland’s standard of a "reasonable probabil-
ity" of a different result. See id. at 694; 28 U.S.C. § 2254(d). An
objectively reasonable application of Strickland principles compels
the conclusion that Gray’s lawyers were prejudicially ineffective in
their failure to investigate and develop, for sentencing purposes, evi-
dence of Gray’s impaired mental condition.

A.

To establish deficient performance under Strickland, a petitioner
"must show that counsel’s representation fell below an objective stan-
dard of reasonableness." Strickland, 466 U.S. at 688. The perfor-
mance of counsel is measured in terms of "reasonableness under
prevailing professional norms." Id. at 688. Our evaluation of perfor-
mance "must be highly deferential," judged "on the facts of the partic-
ular case," and considered "from counsel’s perspective at the time."
Id. 689, 690. The performance inquiry in this case centers on the
nature of counsel’s duty to investigate mitigating evidence for sen-
tencing in a capital case. Strickland does not require defense counsel
to "investigate every conceivable line of mitigating evidence no mat-
ter how unlikely the effort would be to assist the defendant at sentenc-
ing." Wiggins v. Smith, 539 U.S. 510, 533 (2003) (citing Strickland,
466 U.S. at 689). Instead, it imposes upon counsel "a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S. at 691;
see Wiggins, 539 U.S. at 533.

"Prevailing norms of practice as reflected in the American Bar
Association standards and the like are guides to determining what is
reasonable, but they are only guides." Stickland, 466 U.S. at 688 (cita-
tion omitted); see also Meyer v. Branker, 506 F.3d 358, 372 (4th Cir.
 GRAY v. BRANKER 11
2007) (noting that although the ABA Guidelines can be relevant "in
determining what constitutes reasonable performance in a capital trial,
they certainly cannot be dispositive in and of themselves" (citations
omitted)). According to the Supreme Court, it was a "well-defined
norm[ ]" at the time of Gray’s trial that "investigations into mitigating
evidence ‘should comprise efforts to discover all reasonably avail-
able mitigating evidence.’" Wiggins, 539 U.S. at 524 (quoting Ameri-
can Bar Association Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases 11.4.1.C (1989) (ABA Guide-
lines)). The ABA Guidelines suggested that one avenue of investiga-
tion that counsel should consider is the condition of the defendant’s
mental health. ABA Guidelines 11.8.3.F.2, 11.8.6.B. The Guidelines
also advised that "[t]he assistance of one or more experts (e.g., social
worker, psychologist, psychiatrist, investigator, etc.)" in the investiga-
tion, development, and presentation of relevant mitigating evidence
"may be determinative as to [the] outcome" at sentencing. ABA
Guideline 11.8.6 cmt.; see also id. 1.1 cmt., 5.1.1.A.v, 11.4.1. Coun-
sel’s "strategic choices made after thorough investigation . . . are vir-
tually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that rea-
sonable professional judgments support the limitations on investiga-
tion." Strickland, 466 U.S. at 690-91. In evaluating an ineffective
assistance claim, a court "must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct." Id. at 690.

The critical question here is whether Gray exhibited signs of men-
tal and emotional instability that made it essential for his counsel to
investigate for evidence of mental impairment. In concluding that
Gray did not establish that his counsel performed in a deficient man-
ner, the MAR court failed to consider the reasonableness of counsel’s
actual performance under prevailing professional norms, which
include the duty to make considered decisions about areas of potential
investigation, as Strickland requires. See 466 U.S. at 688, 690-91. The
MAR court thus arrived at its determination through an unreasonable
application of Strickland.

1.

Gray’s counsel were confronted repeatedly with indications of
Gray’s mental impairment. Nevertheless, without making reasoned
12 GRAY v. BRANKER
strategic decisions, counsel ignored these red flags and failed to
investigate for mental health evidence or consider introducing evi-
dence on that issue. See Rompilla v. Beard, 545 U.S. 374, 392 (2005).
To begin with, the Gray divorce file, handed to Worthington just days
before he assumed the representation of Gray in the murder case, con-
tained two affidavits from professionals who warned explicitly about
Gray’s mental instability: Dr. Barker described Gray as suffering
from behavior aberration and a psychological problem; a marriage
counselor stated that she withdrew her services because she was
alarmed by Gray’s challenging and confrontational conduct. Like-
wise, the investigation that defense counsel did conduct led to state-
ments by Gray’s friends and associates that prior to the offense he
was "very disturbed," "very agitated," not "in his right mind," and
"distraught" over the breakup of his marriage. J.A. 822, 782, 802,
1292. After the offense Gray’s jailers placed him under suicide watch,
observing that he was very depressed and having anxiety attacks and
fainting spells; a friend who telephoned Gray while he was incarcer-
ated said he was "not . . . one hundred percent rational." J.A. 884.
Finally, Dr. Lara, a psychiatrist, diagnosed Gray with a psychiatric
impairment, stating that he suffered from "regression in behavior and
reductions in impulse control" at the time of the offense. J.A. 45. Dr.
Lara recommended further evaluation of Gray’s mental condition at
the time of the offense and offered additional assistance in that regard.

Despite the many indications of Gray’s mental impairment and the
well-marked paths to the development of evidence about the impair-
ment, Worthington had only one conversation with Gray about pursu-
ing mental health evidence through an independent psychiatrist. Gray
responded that he did not want to spend more money on the case and
that he did not need a psychiatrist (Dr. Lara had also recommended
that Gray undergo psychiatric counseling). This conversation
occurred prior to indictment and long before Gray or his lawyers
knew that he would be tried for a capital offense, yet Worthington
never again raised the subject of mental health evidence with Gray.
After Wooten, the second lawyer, came into the case, he looked at Dr.
Lara’s report, but failed to see any need to investigate for evidence
of mental impairment. Gray’s two lawyers never once discussed with
each other the advisability of exploring the need for mental health tes-
timony from an expert.
 GRAY v. BRANKER 13
Defense counsel should not have dispensed with a mental health
investigation just because Gray did not want to hire an independent
psychiatrist at the pre-indictment stage, well before the state
announced its intention to seek the death penalty. See ABA Guideline
11.4.1.C ("The investigation for preparation of the sentencing phase
should be conducted regardless of any initial assertion by the client
that mitigation is not to be offered."). Defense counsel had an offer
of mental health investigation assistance from Dr. Lara, and that assis-
tance was available free of charge.1 Dr. Lara said that if he was pro-
vided further information about Gray’s behavior and functioning prior
to the offense, he would endeavor to make a more definitive diagnosis
of Gray’s mental condition at the time of the offense. Defense counsel
completely ignored Dr. Lara’s offer, despite the fact that the informa-
tion specified and sought by Dr. Lara was at their fingertips. Nor did
counsel seek court approval to hire an independent psychiatrist at
state expense when Gray became indigent shortly after his indictment.
Finally, counsel failed to consider the issue of mental health evidence
even after the jury returned a guilty verdict and Gray faced the cer-
tainty of a capital sentencing proceeding.

Counsel’s failure to conduct an investigation into mental health
evidence was not the result of "reasonable professional judgments."
Strickland, 466 U.S. at 691; Wiggins, 539 U.S. at 534; see also
Meyer, 506 F.3d at 372. There was simply no consideration of
whether a defense based on psychiatric evidence might be a strategy
worth exploring. It was the chief jailer, and not Worthington, who
first suggested that Gray undergo a competency evaluation. More-
over, counsel pursued a questionable alibi theory until days before
trial, completely ignoring an avenue of investigation (potential mental
1
Contrary to the dissent’s assertion, see post at 37 n.5, the MAR record
supports the statement that Dr. Lara would have supplemented his evalu-
ation at no cost to Gray. As Dr. Lara’s report reveals, he was employed
as a forensic psychiatrist at the pretrial detention center at Dorothea Dix
Hospital, a state psychiatric facility operated by the Secretary of the
North Carolina Department of Health and Human Services. See N.C.
Gen. Stat. Ann. § 122C-181. Moreover, even assuming that Dorothea
Dix would have charged for the additional services volunteered by Dr.
Lara, Gray’s counsel could have moved for further evaluation at state
expense once Gray became indigent.
14 GRAY v. BRANKER
health evidence) that held promise, according to Dr. Lara’s report.
There is no indication that Worthington and Wooten, who had no
experience whatsoever in capital litigation, understood that such evi-
dence can be an important factor in a jury’s decision at sentencing.
In short, counsel’s failure to investigate and develop evidence of
Gray’s mental impairment was not a carefully considered strategic
choice.

The MAR court’s conclusion that Gray failed to satisfy Strick-
land’s deficient performance component was based on several errone-
ous determinations. The court concluded that the accident defense
adopted at the last minute by Gray’s lawyers was inconsistent with a
defense of diminished mental responsibility. This conclusion fails to
consider that Gray’s "counsel were not in a position to make [an
informed] strategic choice" about what defense theory or theories to
pursue because they had failed to undertake a reasonable investigation
before making that choice. Wiggins, 539 U.S. at 536. Moreover, com-
mon sense dictates that an accident defense and an impaired mental
capacity defense would have been compatible in Gray’s case. Pursuit
of the two theories would have paved the way for the obvious argu-
ment that Gray’s mental illness led to his altercation with Mrs. Gray
in the driveway, which, in turn, led to her accidental shooting. The
MAR court also discounted the testimony of Dr. Bellard and, in doing
so, overlooked a basic lesson from that testimony: a reasonable inves-
tigation by counsel could have led to the development of mental
health evidence, such as the expert opinion offered by Dr. Bellard,
and that evidence would have been admissible in mitigation at sen-
tencing.

Finally, the MAR court relied heavily on Gray’s one-time refusal
to hire an independent psychiatrist. This reliance was unreasonable
for several reasons. First, as discussed above, Gray’s statement came
quite early in the proceedings, before he knew that he was facing the
potential of a death sentence. Even when the stakes were raised to the
level of life or death, counsel did not revisit the mental health evi-
dence issue, either between themselves or with Gray. Second, a rea-
sonable lawyer would not rely on his client’s self-assessment of his
mental health, especially in a capital case. There was an independent
duty to investigate. Third, the MAR court found that Strickland’s first
element was not satisfied specifically because Gray was not indigent
 GRAY v. BRANKER 15
and had not authorized funds for an independent psychiatric examina-
tion. Gray has rebutted this finding by clear and convincing evidence
that he was in fact indigent at the time of trial, having placed all of
his assets in an irrevocable trust for his children six months earlier.
As the Supreme Court has said, the state court’s "partial reliance on
an erroneous factual finding further highlights the unreasonableness
of [its] decision." Wiggins, 539 U.S. at 528. Fourth, regardless of
Gray’s financial status, further psychiatric evaluation could have been
obtained from Dr. Lara free of charge.

In arguing that Gray’s refusal to spend his own funds for a psychi-
atric evaluation ended his counsel’s responsibility to investigate for
mental health evidence, the state urges us to extend the Supreme
Court’s recent ruling in Schriro v. Landrigan, 127 S. Ct. 1933 (2007).
Schriro holds that when a defendant "inform[ed] the [trial] court [dur-
ing the sentencing hearing] that he did not want mitigating evidence
presented," a reviewing court could reasonably conclude that counsel
was not required to present such evidence against his client’s clear
directive. Id. at 1942. The Court was careful to distinguish the cir-
cumstances in Schriro from those in Rompilla, where the Court found
ineffective assistance of counsel when "the defendant refused to assist
in the development of a mitigation case, but did not inform the court
that he did not want mitigating evidence presented." Id. (citing Rom-
pilla, 545 U.S. at 381). In Schriro the Court thus reaffirmed the
Court’s earlier holdings that counsel has an affirmative duty to inves-
tigate for mitigating evidence when preparing for sentencing. See
Rompilla, 545 U.S. at 381; Wiggins, 539 U.S. at 523. Here, Gray, dis-
playing an attitude of noncooperation similar to that of the petitioner
in Rompilla, made a statement to one of his lawyers very early in the
case indicating that he did not wish to spend his money on a psychia-
trist. Nothing in Schriro permits Gray’s statement to be used to
relieve his counsel of their duty to investigate for mitigating mental
health evidence.

As we have already emphasized, prior to their representation of
Gray neither Worthington nor Wooten had ever represented a client
facing the death penalty. There is no indication that either understood
that expert mental health evidence could be critical to the jury’s deci-
sion on sentencing. There is no indication that either understood his
duty, in light of the circumstances in Gray’s case, to make a thorough
16 GRAY v. BRANKER
investigation into Gray’s mental health and to consider introducing
expert evidence on that subject. Gray’s lawyers simply missed or
ignored — and failed to act on — the many signs that Gray was men-
tally and emotionally unstable. Because their failure to investigate in
this area was unreasonable under prevailing professional norms, Gray
has established Strickland’s element of deficient performance.

2.

The dissent’s attacks on our conclusion that Gray’s counsel were
ineffective in failing to investigate Gray’s mental health can be boiled
down to two, and both miss the mark.

First, the dissent claims that we take "liberties . . . with the facts,"
"spin" the facts, and "mischaracterize[ ] record evidence" in conclud-
ing that there were sufficient signs to alert Gray’s counsel to the need
for an investigation into Gray’s mental health. Post at 31, 33 n.1, 31;
see also post at 32 (speaking of the "contrived nature of the majority’s
[factual] support"). No spin or mischaracterization is necessary to
establish that Gray’s counsel had sufficient notice. The dissent begins
its efforts to discount the signs of Gray’s mental instability by launch-
ing an extended attack on the divorce proceeding affidavits of Dr.
Barker (Mrs. Gray’s gynecologist) and Marilyn Huber (the Grays’
marital counselor). The dissent argues that these affidavits did not
establish that Gray "suffer[ed] from a diagnosable mental illness" or
that Gray’s mental health was worthy of investigation, post at 50, 38,
but that is not our point. The point is that the affidavits, which Wor-
thington had at the outset, were the first of many indications of Gray’s
mental or emotional disturbance. The affidavits revealed that Gray
had a psychological problem and engaged in aberrant, challenging,
and confrontational behavior. Much more information about Gray’s
irrational and disturbed behavior was reported to defense counsel by
Gray’s friends, associates, and jailers, as we have already recounted.
Most important, Dr. Lara, the state psychiatrist, diagnosed Gray with
a mental disorder and reported that Gray may have been suffering
from regression in behavior and reduced impulse control at the time
of the offense, but Dr. Lara indicated that he did not have sufficient
information about Gray’s behavior and condition prior to the offense
to make a complete assessment. Dr. Lara offered to expand his opin-
 GRAY v. BRANKER 17
ion about Gray’s mental condition at the time of the offense, if addi-
tional information was provided.

The dissent continues its first line of attack by claiming that the
record reveals the "substantive weakness of [the] purported evidence
of Gray’s psychiatric impairment prior to the murder." Post at 35
(emphasis added and internal quotation marks omitted). However, the
dissent later reverses itself, stating that "[a] number of lay witnesses"
testified that Gray was "under significant stress and acting out of
character at the time of the murder." Post at 45 (emphasis omitted).
This testimony, such as it was, confirms that Gray’s counsel had
access to credible evidence that Gray suffered from a mental distur-
bance before the offense.2 The post-arrest observations of Gray’s jail-
ers, friends, and counsel only serve as additional indications that Gray
suffered from a preexisting mental or emotional impairment that war-
ranted investigation, including evaluation by a mental health expert.
In sum, the notice to counsel about the issue of Gray’s mental condi-
tion was nothing short of glaring.

Second, the dissent contends that we, "with the benefit of hind-
sight, discard the high degree of deference owed to defense counsel’s
strategic choices, and replace it with an attempt to mandate that sen-
tencing strategies in death penalty cases always include presentation
of expert mental health testimony." Post at 46. The dissent misstates
our position, for we do not (and could not) impose any blanket strat-
egy requirement upon defense counsel. We simply recognize the ines-
capable fact that defense counsel made no strategic choices about
whether to introduce mental health evidence because they failed to
undertake a reasonable investigation in that area, notwithstanding the
clear indications that such an investigation was warranted. Of course,
defense counsel need not investigate for evidence of mental impair-
ment in a case where the circumstances indicate that such an investi-
gation would not be worthwhile. But here, as we have explained,
there were multiple indications that Gray suffered from a mental
2
As we explain later, the scattered trial testimony about Gray’s mental
state was not part of a considered mitigation strategy by Gray’s counsel
that centered on his mental impairment. See infra at 25-26. Indeed, much
of this testimony was elicited by the prosecution during the guilt phase.
18 GRAY v. BRANKER
impairment. See supra at 11-14. Gray’s counsel simply ignored, or
failed to appreciate the significance of, these leads.

Instead of pursuing the futile argument that Gray’s counsel under-
took a reasonable investigation, the dissent contends that we err by
failing to defer to counsel’s mitigation strategy for sentencing. Of
course, even the dissent’s attempts to put a better gloss on defense
counsel’s inadequate strategy cannot rectify the central problem.
Counsel’s failure to investigate Gray’s mental health made it impossi-
ble for them to adopt a reasonably informed strategy. The failure to
investigate cannot be justified. Gray’s counsel never discussed or con-
sidered an investigation into Gray’s mental condition during the
development of Gray’s mitigation case. Thus, counsel’s inaction was
not based on a "reasonable professional judgment[ ]" that a mental
health investigation was unwarranted. Strickland, 466 U.S. at 691.
And, despite the dissent’s assertions, the failure to investigate was not
a part of any reasoned defense strategy. See Meyer, 506 F.3d at 370-
72 (holding that counsel’s performance was reasonable when he
chose not to introduce mental health evidence for strategic reasons
after a thorough investigation). We have no "preferred strategy" that
we are attempting to impose on counsel, as the dissent charges. Post
at 46; see also id. (referring to "[t]he majority’s preferred strategy,
concocted with the benefit of hindsight"). Nor do we adopt "a per se
rule requir[ing] the presentment of expert mental health mitigation
evidence." Id. at 46. Instead, we simply adhere to Supreme Court pre-
cedent and require that counsel, before settling on a sentencing strat-
egy, make "efforts to discover all reasonably available mitigating
evidence." Wiggins, 539 U.S. at 524 (internal quotation marks omit-
ted); see Strickland, 466 U.S. at 690-91. Because Gray’s counsel
ignored numerous red flags and failed to investigate reasonably avail-
able mitigating evidence about Gray’s mental impairment, we con-
clude that their performance was constitutionally deficient, and the
state MAR court’s finding to the contrary was an unreasonable appli-
cation of Strickland.

B.

To establish Strickland’s second element, a petitioner must show
a "reasonable probability" that counsel’s deficient performance preju-
diced the outcome of the case. 466 U.S. at 694. "A reasonable proba-
 GRAY v. BRANKER 19
bility is a probability sufficient to undermine confidence in the
outcome." Id. In a case where counsel fails to properly investigate and
develop mitigating evidence for sentencing, prejudice occurs when
"the likelihood of a different result if the [missing] evidence had gone
in is ‘sufficient to undermine confidence in the outcome’ actually
reached at sentencing." Rompilla, 545 U.S. at 393 (quoting Strick-
land, 466 U.S. at 694). The state MAR court also erred in concluding
that Gray failed to satisfy Strickland’s prejudice requirement.

1.

In determining that counsel’s performance did not cause prejudice
in the sentencing phase, the MAR court held: "Even with the prof-
fered medical testimony this Court finds it to be a leap of speculation
that the jury would necessarily have found the existence of the statu-
tory and nonstatutory mitigating circumstances." J.A. 1566 (emphasis
added). The MAR court required certainty that the jury would have
reached a different result at sentencing. This standard is more onerous
than either the preponderance of the evidence standard rejected as too
demanding by the Supreme Court in Strickland or the one actually
adopted there. Under Strickland Gray is simply required to show that
there is a "reasonable probability" that the missing evidence would
have led the jury to "conclude[ ] that the balance of aggravating and
mitigating circumstances did not warrant death." 466 U.S. at 695; see
also Woodford v. Viscotti, 537 U.S. 19, 22-24 (2002).

Putting aside the MAR court’s use of a standard that is contrary to
Strickland, we hold that the state court’s decision was an unreason-
able application of the proper standard. See 28 U.S.C. § 2254(d). The
MAR court made the very error the Supreme Court counseled against
in Williams: "[The state court’s] prejudice determination was unrea-
sonable insofar as it failed to evaluate the totality of the available mit-
igation evidence . . . [or] reweigh[ ] it against the evidence in
aggravation." Williams, 529 U.S. at 397-98; see Strickland, 466 U.S.
at 695-96. The MAR court here rested its lack of prejudice determina-
tion on two findings: that the trial court submitted the mental health
mitigating factors to the jury and that the state presented lay evidence
that Gray did not suffer from mental impairment. However, in reach-
ing its conclusion, the MAR court failed entirely to mention any of
the mitigating evidence presented at trial, see Williams, 529 U.S. at
20 GRAY v. BRANKER
398, and improperly discounted the mitigation evidence that could
have been introduced at sentencing. Further, the MAR court did not
even attempt to evaluate the relative strength of the competing evi-
dence. Because the MAR court unreasonably failed to apply the test
for prejudice established by Supreme Court precedent, we must weigh
the evidence of mitigation against the state’s evidence of aggravation
to determine whether Gray was prejudiced by his counsel’s constitu-
tionally deficient performance. Our own examination of the record
persuades us that prejudice did result.

At sentencing the jury found thirteen of the twenty-one mitigating
factors proffered. The jury, among the factors, determined that Gray
was a loving and dedicated father, son, and provider; that he contrib-
uted to the community as a Little League coach; that he was law abid-
ing and posed no threat for forty-two years; that he cooperated with
law enforcement; that Mrs. Gray’s death was quick; and that Gray
exhibited good behavior in jail. The jury, however, failed to find the
two mental health mitigating factors, that Gray was under the influ-
ence of mental or emotional disturbance at the time of the offense and
that his capacity to conform his conduct to the requirements of the
law was impaired. In light of defense counsel’s lack of focus on these
factors, it is not surprising that the jury did not adopt them. Counsel
did not present a cohesive case for the mental or emotional distur-
bance factor — indeed, it was barely mentioned in closing argument
at sentencing. Worthington testified at the MAR hearing that he could
not recall introducing any evidence whatsoever to support the second
mental health mitigator, which was submitted solely at the instance
of the trial judge.

At the MAR hearing Gray’s expert on the practice of criminal law
testified that "a medical witness is the most important thing you can
have to support those two [mental health] mitigating factors." J.A.
1627. Evidence of mental disturbance of the type omitted at Gray’s
sentencing can be persuasive mitigating evidence for jurors consider-
ing the death penalty, and this evidence can determine the outcome.
See, e.g., Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004); ABA
Guideline 5.1 cmt., 8.1 cmt., 11.8.6 cmt.; ABA Guideline 4.1 cmt.
(rev. ed. 2003); Stephen P. Garvey, Aggravation and Mitigation in
Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538,
1559, 1564-65 (1998). In comparison to the other mitigating factors
 GRAY v. BRANKER 21
submitted for the jury’s consideration in this case (such as that Gray
"was a good and loving son," J.A. 740), the two mental health miti-
gating factors — largely ignored by defense counsel — were Gray’s
best hope of convincing the jury that he did not deserve the death pen-
alty. The missing expert evidence on Gray’s impaired mental condi-
tion would have provided the essential support for these factors.

We need not speculate about whether expert evidence would have
been available if Gray’s lawyers had fulfilled their duty to investigate.
The lawyers had in their possession Dr. Lara’s report diagnosing Gray
with a mental disorder, specifically, "adjustment disorder with mixed
disturbance of emotions and conduct," together with "reductions in
impulse control." J.A. 45. If the lawyers had decided that Dr. Lara’s
initial diagnosis needed to be supplemented, he had offered to do just
that. Yet Dr. Lara was not called as a witness in mitigation. In addi-
tion, counsel could have introduced expert testimony such as that of
Dr. Bellard, who diagnosed Gray as having "paranoid personality dis-
order" and "adjustment disorder." J.A. 1743. The jury would have
heard from such an expert that Gray had a severe mental illness, and
that his ability to conform his conduct to the requirements of the law
was "significantly impaired" at the time of the offense. J.A. 1744. The
jury would have heard testimony that "if [Gray] had not had paranoid
personality disorder, he would have been more likely to deal in a
rational and calm manner with the problems that were facing his fam-
ily." Id. It would have learned that Gray’s disorder made him irratio-
nally mistrusting and "quick to counterattack," and that individuals
with his disorder are prone to "psychotic episodes" when they are
under severe stressors such as those faced by Gray at the time of the
offense. J.A. 278-79.

This expert evidence, which was missing entirely, would have pro-
vided the jury with a medical explanation for Gray’s compulsive
behavior and his inability to control his reactions. The jury would
have known that he suffered from a severe mental illness. In short,
this evidence would have provided direct support for the two mental
health mitigating factors. Given the significance of the mental health
evidence, there is a reasonable probability that a competent lawyer
would have introduced it at sentencing. It would have revealed no
additional negative factors to the jury and would have had virtually
no downside for defense strategy. See Wiggins, 539 U.S. at 535. Spe-
22 GRAY v. BRANKER
cifically, evidence of Gray’s mental impairment would not have con-
flicted with the mitigation strategy pursued by the defense, which was
essentially that Gray was a good father, son, and community member.
Id. The mental health evidence would surely have provided a signifi-
cant boost to Gray’s mitigation case.

Nonetheless, the MAR court discounted Dr. Bellard’s opinion, not-
ing that (1) "Dr. Bellard’s contact with defendant was six years after
the murder" and (2) Dr. Bellard "had not reviewed the trial testimony
. . . [which] is important to making the diagnosis arrived at by Dr.
Bellard . . . [as] noted by the manual Dr. Bellard himself utilizes."
J.A. 1562. The MAR court’s reasoning is objectively unreasonable.
First, Gray was forced to rely on Dr. Bellard’s examination six years
after the offense precisely because of the deficient performance of
Gray’s counsel. In this circumstance, the rejection of Dr. Bellard’s
testimony because it was obtained belatedly would place Gray in an
impossible position by prohibiting him from presenting evidence to
rectify his counsel’s constitutional deficiency. Such an approach
would directly contravene the uncontroversial requirement that a
court assessing prejudice under Strickland must consider admissible
"mitigation evidence developed in postconviction proceedings." Wil-
liams, 529 U.S. at 398. Second, in suggesting that Dr. Bellard disre-
garded professional standards by failing to review "the trial testimony
which set forth defendant’s actions and conduct in the days and
months leading up to the murder of Rosalyn Gray," J.A. 1562, the
MAR court drastically mischaracterized the diagnostic requirements
of the DSM-IV (the manual used by Dr. Bellard) as well as Dr. Bel-
lard’s testimony. The DSM-IV diagnostic criteria focuses solely on
the patient’s own behaviors; it nowhere states, as the MAR court
asserted, that interviewing other individuals "is important to making
the diagnosis." J.A. 1562. The only support for the MAR court’s con-
clusion is Dr. Bellard’s testimony that "all information would be help-
ful" in making a diagnosis. J.A. 1753. In fact, Dr. Bellard — who had
fourteen years’ experience as a clinical psychiatrist — did review the
trial testimony of a witness, Dr. Gregory Gridley, who counseled
Gray’s son and interacted with the Grays socially prior to the crime.
In addition, Dr. Bellard conducted a thorough examination of Gray on
two occasions (finding no evidence of malingering), reviewed Gray’s
trial testimony, reviewed the affidavits from Dr. Barker and Huber,
and attempted to contact another witness by telephone, all before
 GRAY v. BRANKER 23
diagnosing Gray with paranoid personality disorder. Thus, clear and
convincing evidence rebuts any conclusion or finding by the MAR
court that the DSM-IV required Dr. Bellard to read the entire trial
record or interview individuals from Gray’s past prior to making a
diagnosis. In sum, the MAR court’s dismissal of Dr. Ballard’s testi-
mony was objectively unreasonable.

Dr. Bellard’s testimony about Gray’s psychiatric disorders (para-
noid personality disorder and adjustment disorder) would have pro-
vided the sentencing jury with compelling support for the two mental
health mitigating factors and, equally important, an explanation for
Gray’s aberrant behavior. Gray’s entire mitigation case — with the
missing expert mental health evidence included and emphasized — is
thus quite powerful. We must determine, however, whether there is
a reasonable probability that it would have outweighed the state’s evi-
dence in support of the death penalty. See Strickland, 466 U.S. at 695.
The weighing process to determine the prejudice question is demand-
ing and requires objectivity. Following the Supreme Court’s
approach, we can say at the outset that the state’s evidence in support
of the death penalty is far weaker than it was in the Williams v. Taylor
case, 539 U.S. 510, where the Court found prejudice as a result of
counsel’s failure to investigate and present mitigating evidence. See
Wiggins, 539 U.S. at 537 (noting that the petitioner in Williams "had
savagely beaten an elderly woman, stolen two cars, set fire to a home,
stabbed a man during a robbery, and confessed to choking two
inmates and breaking a fellow prisoner’s jaw").

The state presented only one witness in its direct case at Gray’s
sentencing hearing, the court clerk who testified that Mrs. Gray had
sworn out four misdemeanor warrants against Gray with a hearing
date scheduled for early December 1992. The state otherwise relied
on evidence from the guilt phase to support the three aggravating fac-
tors found by the jury. The state’s evidence to support the first factor,
that the murder was committed "to disrupt or hinder the exercise of
a governmental function," was based on Gray’s failure to meet dis-
covery deadlines in the divorce case, which had prompted a court
order directing him to respond. The second aggravating factor, that
the crime was committed to interfere with Mrs. Gray’s "exercise of
her official duty as a witness" was based on the fact that Mrs. Gray
had sworn out misdemeanor warrants against Gray on June 26, 1992,
24 GRAY v. BRANKER
and that a trial was scheduled on those charges. The final factor, that
the "murder [was] especially heinous, atrocious or cruel," was sup-
ported by testimony that Gray had assaulted Mrs. Gray on at least one
prior occasion and that he had struggled with her before her death,
inflicting noticeable marks or injuries. In addition, as the MAR court
observed, the jury heard testimony from lay witnesses that Gray was
"in full control of his mental faculties" at the time of the crime. J.A.
1566. These witnesses admitted, however, that Gray’s behavior was
erratic and overly emotional.

The jury did not have the opportunity to weigh the aggravating fac-
tors and adverse lay testimony against the powerful expert mental
health evidence that could have been placed in the balance with the
thirteen mitigating factors that were established. The evidence of
Gray’s serious mental illness would have given the jury the full pic-
ture of Gray and his crime, including the fact that he was acting under
a severe mental or emotional disturbance and with impaired capacity
when he killed his wife.

We have reviewed the evidence on both sides, and we conclude
that "had the jury been able to place [Gray’s mental disturbance] on
the mitigating side of the scale, there is a reasonable probability that
at least one juror would have struck a different balance." Wiggins, 539
U.S. at 537. There is, in other words, "a reasonable probability that
[the jury] would have returned with a different sentence." Id. at 536.
Gray has therefore established prejudice as a result of his counsel’s
inadequate performance with respect to sentencing, and a new sen-
tencing hearing is warranted.

2.

The dissent acknowledges, as it must, that the MAR court "fail[ed]
to engage in an explicit reweighing of all available mitigating evi-
dence." Post at 48. Nonetheless, the dissent attacks our reasoning on
several grounds, constructing its own arguments rather than relying
on the MAR court’s analysis. First, and foremost, the dissent declares
that the MAR court made no legal error in avoiding the reweighing
process because such an attempt would have been "farcical" after it
found the testimony of Dr. Bellard to be "unpersuasive." Id. As we
have explained, the MAR court’s bases for discounting Dr. Bellard’s
 GRAY v. BRANKER 25
opinion were objectively unreasonable. See supra at 22-23. Moreover,
regardless of the MAR court’s assessment of Dr. Bellard’s opinion,
the court erred in its application of Strickland and Williams by failing
to reweigh the totality of the evidence. Instead, its prejudice determi-
nation consists of a single, conclusory sentence. The Supreme Court
makes clear that, in assessing prejudice, a state court may not simply
draw a conclusion with no reviewable reasoning. Instead, the Court
has repeatedly emphasized that it is essential that a court "evaluate the
totality of the available mitigation evidence — both that adduced at
trial, and the evidence adduced in the habeas proceeding — in
reweighing it against the evidence in aggravation." Williams, 529 U.S.
at 397-98. Because mental health testimony was not presented at trial
and was properly presented to the MAR court, the MAR court unrea-
sonably applied Supreme Court precedent by failing to reweigh the
evidence. See id.

Second, in a further sign that the dissent finds no support in the
MAR court’s analysis, the dissent argues that we "fail[ ] to recognize
the centrality of . . . abundant lay witness testimony to defense coun-
sel’s mitigation theory," which "focus[ed] on Gray’s mental and emo-
tional stress." Post at 50. The dissent is mistaken. The record reveals
that Gray’s counsel did not present (or attempt to present) any evi-
dence at sentencing that Gray suffered from a mental impairment. As
we have discussed above, Gray’s counsel neither investigated, nor
adopted a strategy relating to, Gray’s mental health. Worthington’s
admissions at the MAR hearing directly contradict the dissent’s char-
acterization of lay mental health testimony as "abundant" and "cen-
tral" to what the dissent claims was a "focused" defense strategy. Id.
In discussing the mitigating factor that Gray was under the influence
of mental or emotional distress, Worthington recalled that the only
evidence offered was the "testimony in the trial of . . . a friend of
[Gray’s] . . . and I’m not for sure, I think that [Gray] testified that he
was under emotional distress." J.A. 1658-59. Worthington could not
recall offering any evidence in support of the mitigating factor that
Gray’s capacity to conform his conduct to the law was impaired.

Although Gray’s counsel admitted to eliciting only limited testi-
mony about Gray’s emotional distress, some witnesses nonetheless
mentioned his instability. Much of this testimony, however, was in
response to questioning by the prosecution, not Gray’s counsel. The
26 GRAY v. BRANKER
trial court recognized that there was limited evidence about Gray’s
mental state, but it allowed the mental distress mitigating factor to be
submitted to the jury "out of an abundance of caution." J.A. 1366.
Worthington made a passing (two-sentence) mention of only one of
the mental health mitigators in his closing argument, stating: "You
heard Charles Buchanan, a life-long friend talk about Mr. Gray’s
mother, and this is the mitigating factor, the felony was committed
while the defendant was under the influence of mental or emotional
distress. The mother hospitalized and he was distressed during the
month of November." J.A. 1430-31. In sum, the dissent is wrong to
say that there was "abundant lay testimony" about Gray’s mental
health. More important, there is no support for the argument that
Gray’s counsel adopted or pursued a mitigation theory related to
Gray’s mental impairment.

Third, the dissent argues that any expert mental health testimony
would have been double-edged. In reaching this conclusion, the dis-
sent relies on Dr. Lara’s report and fails to recognize the obvious
implications of Gray’s counsel’s deficient performance. If Gray’s
counsel had undertaken a reasonable investigation after reviewing the
report, they would have provided Dr. Lara with the additional infor-
mation he requested for a complete assessment of Gray’s mental
health at the time of the offense. Dr. Lara’s report thus is not an end-
point in expert evidence, as the dissent would have it, but a beginning
that should have indicated to counsel that further investigation was
necessary. A proper investigation and evaluation of Gray’s mental
health would have provided a diagnosis such as that of Dr. Bellard
that could have been introduced at sentencing. There is no double
edge to this evidence because Dr. Lara’s report explicitly left room
for a more informed assessment, and the inclusion of either expert’s
final opinion would not have undermined Gray’s defense strategy. See
Bowie v. Branker, 512 F.3d 112, 121 (4th Cir. 2008); Moody, 408
F.3d at 152.

Finally, the dissent faults us for "cast[ing] aside the MAR court’s
opinion and conduct[ing our] own analysis," claiming that our "doe-
eyed view" of the missing evidence "unsurprisingly" leads us to our
"preferred result" (a new sentencing hearing). Post at 53, 49, 53. The
MAR court, by failing to conduct its own proper analysis, left us with
no choice but to undertake our own independent review of the record.
 GRAY v. BRANKER 27
In undertaking that review, we have not, as the dissent freely charges,
"manufacture[d] a hypothetical expert super-witness," post at 53 n.16,
or fashioned a "mitigation case of [our] own making," id. at 53.
Instead, we have conducted a straightforward and dispassionate
review of the record, which includes the evidence developed by
Gray’s post-conviction counsel and presented to the MAR court. This
detailed review, which is set forth above, establishes a reasonable
probability that deficient performance by Gray’s counsel led to his
sentence of death. Because "the likelihood of a different result if the
[missing mental health] evidence had gone in is sufficient to under-
mine confidence in the outcome actually reached at sentencing,"
Rompilla, 545 U.S. at 393, a new sentencing hearing is required.

IV.

Gray also contends that his right to effective counsel was violated
because Worthington, his lead counsel, failed to withdraw despite an
actual conflict of interest. Gray argues that Worthington should have
withdrawn in order to testify as to Gray’s plan for complying with
court ordered discovery in the divorce proceeding. The Sixth Amend-
ment right to counsel is violated when the defense lawyer has an
actual conflict of interest that "adversely affect[s] [the] lawyer’s per-
formance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). When this
situation occurs, prejudice is presumed. Id. at 349-50; Mickens v. Tay-
lor, 535 U.S. 162, 173 (2001).

Here, the MAR court applied the Cuyler v. Sullivan test, as adopted
by the Supreme Court of North Carolina in State v. Walls, 463 S.E.2d
738 (N.C. 1995), and concluded that even if there was a conflict of
interest, Worthington’s failure to withdraw had no adverse effect on
his representation of Gray. The court based its conclusion on several
findings, including that Worthington was retained as Gray’s divorce
lawyer only shortly before Gray’s arrest for his wife’s murder; that
when the murder case arose, Worthington had not yet begun working
on the divorce case and had no substantive knowledge about it; and
that Worthington’s testimony about the divorce case would have been
duplicative of other defense testimony. Gray has not rebutted any of
these findings by clear and convincing evidence, so we presume them
to be correct. 28 U.S.C. § 2254(e)(1). The MAR court’s decision on
this conflict of interest claim did not involve an unreasonable applica-
28 GRAY v. BRANKER
tion of Cuyler v. Sullivan, see 28 U.S.C. § 2254(d)(1), and we accord-
ingly reject the claim.

V.

Gray further contends that the district court erred in denying his
claim, asserted by amendment to his federal petition, that Worthing-
ton labored under a second conflict of interest after he (Worthington)
was shot by his wife. The conflict arose, according to Gray, because
"Worthington was implicated in the same type of [domestic conflict]
as Gray, and [Worthington’s] wife was being criminally prosecuted
in the same jurisdiction by the same authorities." Appellant’s Br. 57.
After raising the issue on its own motion, the district court held that
this claim is barred by AEDPA’s one-year statute of limitations. See
28 U.S.C. § 2244(d)(1)(A) (imposing a one-year limitation for filing
that runs from "the date on which the [state court] judgment became
final by the conclusion of direct review or the expiration of the time
for seeking such review"). As part of its ruling, the court determined
that the claim, asserted by amendment, could not be saved by relation
back to the original petition. Gray argues that the district court erred
(1) by improperly raising the limitations issue on its own motion and
(2) in concluding that the amendment did not relate back to the origi-
nal petition. (Gray concedes that if the amendment does not relate
back, it is time barred under AEDPA.) We review the district court’s
determination on these matters for abuse of discretion. See Day v.
McDonough, 547 U.S. 198, 202 (2006); United States v. Pittman, 209
F.3d 314, 316 (4th Cir. 2000).

In Day v. McDonough the Supreme Court held that a district court
has the discretion, but not the obligation, to consider on its own
motion the timeliness of a habeas petition under AEDPA if (1) the
parties have fair notice and an opportunity to be heard; (2) the state
has not waived the limitations defense; (3) the "petitioner is not sig-
nificantly prejudiced by the delayed focus on the limitation issue";
and (4) the court "determine[s] whether the interests of justice would
be better served by addressing the merits or by dismissing the petition
as time barred." 547 U.S. at 209-11 (quotation marks and citations
omitted). In this case the district court allowed the parties to be heard,
and, after considering each of the preliminary factors listed in Day,
 GRAY v. BRANKER 29
concluded that justice would be better served if the court addressed
the statute of limitations issue.

The district court then proceeded to consider whether the amend-
ment’s claim — that Worthington had another conflict of interest
once he was shot by his wife — related back to the original petition.
See Fed. R. Civ. P. 15(c)(2). An amendment to a habeas petition
relates back under Rule 15(c)(2) when the new claim arises from the
"same core facts [in time and type] as the timely filed claims." Mayle
v. Felix, 545 U.S. 644, 657 (2005). Applying this standard, the district
court concluded that Gray’s amendment did not relate back to the
original petition and was therefore time barred.

Gray alleged in his original petition that Worthington was con-
flicted because of his inability to testify to Gray’s intention to comply
with the discovery order in his divorce case. In the amendment Gray
alleges the facts surrounding Worthington’s shooting, but a review of
those facts reveals that they support a separate conflict of interest
claim. As the district court concluded, although these new facts sup-
port the broad contention that Gray was deprived of conflict-free
counsel, they arise from an entirely separate factual circumstance and
create a new and distinct claim for relief. Because the district court
did not abuse its discretion in considering the limitations issue or in
concluding that the conflict of interest amendment did not relate back,
we affirm the dismissal of this amendment as time barred.

VI.

Gray also contests the district court’s dismissal of his amendment
adding an ineffective assistance of counsel claim based on counsel’s
failure to investigate and present expert testimony to rebut the state’s
forensic evidence with respect to the cause of a blunt force injury to
Mrs. Gray’s face. The state asserted that this claim was barred by
AEDPA’s statute of limitations, and the district court held that it did
not relate back to the original petition and dismissed it on limitations
grounds. Gray concedes that the amendment did not relate back, but
argues for the first time on appeal that ineffectiveness of post-
conviction counsel constitutes cause for his failure to present this
issue in state court and in his original federal habeas petition. This
argument is foreclosed by our decision in Mackall v. Angelone, 131
30 GRAY v. BRANKER
F.3d 442 (4th Cir. 1997). In Mackall we held that ineffective assis-
tance of counsel in state habeas proceedings does not constitute cause
for failure to assert a claim on a timely basis. Id. at 449. Gray cannot
distinguish his case from Mackall because he, like the petitioner in
Mackall, asserts that his claim would have been raised but for coun-
sel’s deficient performance in state post-conviction proceedings.
Because Mackall controls, we must conclude that the district court
properly dismissed Gray’s additional ineffective assistance of counsel
claim as barred by the statute of limitations.

VII.

We reverse the judgment of the district court to the extent it denies
the writ of habeas corpus to William Robert Gray, Jr., on his claim
of ineffective assistance of counsel at the sentencing phase of his
case. The remainder of the district court’s judgment is affirmed. On
remand the district court will grant the writ of habeas corpus unless
the State of North Carolina affords Gray a new sentencing hearing
within a reasonable time.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

DUNCAN, Circuit Judge, concurring in part and dissenting in part:

Most habeas petitioners recount, as background to their claims of
ineffective assistance of counsel, stories of childhood trauma and hor-
rific mistreatment. Not so here. Petitioner William Robert Gray, a
prosperous professional with retained counsel, was the abuser, not the
abused.

After stalking his estranged wife for months, Gray shot her to death
in the driveway of his home as she begged a passerby, "Mister, please
don’t leave. If you leave, he’ll kill me." State v. Gray, 491 S.E.2d
538, 544 (N.C. 1997). Gray then entered his home and conscripted his
children, ages eight and eleven, in his scheme to lie to authorities
about what happened.
 GRAY v. BRANKER 31
Gray promptly retained counsel, to whom he strenuously insisted
that he suffered from no psychological infirmities. Counsel neverthe-
less had Gray committed to Dorothea Dix Hospital for a psychologi-
cal evaluation. After observing and evaluating Gray for several
weeks, hospital staff found no signs that Gray was suffering from a
mental illness at the time of the murder. To the contrary, a hospital
physician opined that Gray’s condition at the time of the murder "did
not impair his basic understanding of the nature and quality of his
actions nor his ability to recognize right from wrong." J.A. 252.
Ignoring the advice of his retained counsel, Gray refused to authorize
funds for additional psychiatric examinations or testing. In spite of the
attempts made by counsel and Gray’s unilateral refusal, Gray later
sought collateral relief from his death sentence on the basis that his
counsel provided ineffective assistance by failing to adequately inves-
tigate his mental health condition in preparation for sentencing. The
North Carolina MAR court, closely reviewing Gray’s claim, found
neither deficient performance nor prejudice.

Now, based primarily on a single assessment six years after the
fact, and relying in part on the legally irrelevant state of Gray’s mind
after the murder, the majority indefensibly concludes that the strain
of marital difficulties (the effects of which were borne in large mea-
sure by Gray’s wife) might have driven Gray inexorably towards
uxoricide. In doing so, the majority accords no deference whatsoever
to the reasoned decision of the MAR court, instead dismissing that
court’s findings based on no more than its contrary belief, unsup-
ported by the record, that expert mental health evidence regarding the
psychological effects of marital strife upon Gray might have made the
difference between sentences of life and death. AEDPA, the statute
that expressly controls our review of such claims, specifically prohib-
its the majority’s wholesale rejection of the state court findings of fact
and conclusions of law.

Because the majority opinion contravenes AEDPA’s standard of
review, mischaracterizes record evidence, and ignores Supreme Court
and Fourth Circuit precedent, I am compelled to dissent.

I.

Before discussing the majority’s legal errors, it is first necessary to
highlight some of the liberties it takes with the facts. The majority
32 GRAY v. BRANKER
inflates the importance of affidavits submitted by two doctors, neither
of whom evaluated Gray; relies heavily on a single psychiatric evalu-
ation that occurred a full six years after the murder; and glides over
the eminently reasonable course of action undertaken by Gray’s coun-
sel.

It is probably fair to say, and I doubt the majority would disagree,
that Gray was a boorish person. The record reflects that he abused his
wife, manipulated his children, was "challenging, confrontational,
arrogant and haughty" in counseling, J.A. 227, and, when the mar-
riage disintegrated, attempted to extract negative information about
his wife from her doctor for use in the couple’s ongoing divorce pro-
ceeding. What is missing on this record is any evidence that these
actions, or the murder itself, were products of impaired capacity or a
diagnosable mental illness.

Indeed, evidence abounds to the contrary. Following an evidentiary
hearing, the state MAR court found persuasive testimony that Gray
"was calm, in control, and conducted himself normally as a person in
‘their right mind’ throughout the period of the contentious divorce
proceedings and up to the murder itself." J.A. 1563. The MAR court
cited the testimony of no fewer than seven witnesses who, the court
found, "offered first-hand observation and experience with [Gray] in
the days and months preceding the murder of [his] wife." J.A. 1564
(emphasis added). The court also placed weight on the statement of
Gray’s attorney that he would not have allowed Gray to be inter-
viewed by the police on the night of the murder if he had harbored
questions about Gray’s mental stability. J.A. 1564.

In the face of the MAR court’s clear and cogent explication of the
record, the majority ignores AEDPA’s deferential standard of review
and resorts to mining the record for some indication that Gray’s evils
could have been explained away by psychological factors.

The contrived nature of the majority’s support for its conclusions
regarding Gray’s mental condition is nowhere more apparent than in
its reliance on a single sentence, taken out of context, from an affida-
vit sworn out by Dr. Marshall Barker, Gray’s wife’s gynecologist, in
the couple’s divorce proceeding. In his affidavit, Dr. Barker stated,
 GRAY v. BRANKER 33
Dr. Gray persistently called me and made appearances in my
office on numerous occasions to discuss my treatment of his
wife. Despite my informing him that such discussion would
violate physician/patient confidentiality, he continued to
make calls and appearances in my office demanding infor-
mation about his wife. I realized that by his persistence in
making appearances and telephone calls, he was trying to
gather negative information on his wife. I can see from Dr.
Gray’s behavioral pattern that the behavioral aberration
and psychological problem is with him and not his wife.

J.A. 224 (emphasis added). On cross-examination, Dr. Barker admit-
ted that his personal interactions with Gray were limited to one tele-
phone conversation lasting approximately twenty minutes. J.A. 789-
90. Despite the fact that the reason for the conversation was for Gray
to gather negative information about his wife from her gynecologist,
the majority would rather use Dr. Barker’s "training in psychology"
to inflate the significance of his statements about Gray’s "psychologi-
cal problem." See Majority Op. at 3; J.A. 224.1
1
The actual facts of record put the majority’s spin in proper context.
Dr. Barker’s "training in psychology" involved taking some number of
unspecified "courses dealing with psychology" and attending a confer-
ence on domestic violence. See J.A. 780.
The majority further characterizes Dr. Barker’s opinion as suggesting
that Gray’s psychological issues "included obsessive compulsion."
Majority Op. at 3. Significantly, it offers no citation to any such diagno-
sis, perhaps because there was none. In fact, the only commentary
remotely along those lines occurred in the following portion of Dr. Bark-
er’s testimony on direct examination, and it can hardly be characterized
as a diagnosis:
Q. Dr. Barker, at the time you were speaking to the defendant,
did you formulate any opinion to yourself whether or not he
was in control of his mental and physical faculties at those
times? Yes or no.
A. He was— Yes. He was in control of his faculties.
Q. Your opinion was what?
A. My opinion that he— if you’re asking me is he— was
this— If you’re asking me, over a telephone conversation,
34 GRAY v. BRANKER
The majority also relies on an affidavit filed by Ms. Marilyn
Huber, the Grays’ marital and family therapist. This affidavit, like Dr.
Barker’s affidavit, is irrelevant to the issue of Gray’s mental health.
The affidavit concerned Dr. and Mrs. Gray’s marital counseling ses-
sions. In the majority’s view, it was significant that during these ses-
sions Ms. Huber found Mrs. Gray’s behavior "entirely appropriate,"
and Dr. Gray’s, by contrast, "challenging, confrontational, arrogant
and haughty." J.A. 227; see Majority Op. at 3, 16. Dr. Gray’s behav-
ior led Ms. Huber to discontinue their counseling sessions and led her
to suggest that Mrs. Gray get psychological counseling for the chil-
dren "to help them deal with the dissolution of the marriage and the
possible pressure . . . being asserted upon them by their father." J.A.
227-28.

In an effort to give these affidavits significance they do not have,
the majority skews some facts and takes others out of context. For
instance, it is correct that Mrs. Gray’s divorce lawyer relied on the
affidavits in moving for a court order "for a mental assessment of
Gray." Majority Op. at 3. What the majority fails to disclose, how-
ever, is that the motion requested that both Dr. and Mrs. Gray, as well
as their children, be required to submit to mental and physical assess-
ments. Far from serving as evidence of Dr. Gray’s psychological con-
dition, the motion is, on its face, no more than an attempt by the

did this seem delusional or psychotic, I’m telling you no, it
did not.
Q. Did he appear— did you formulate an opinion satisfactory
to yourself, other than the agitation, he appeared and
sounded to you like he was in control of his mental facul-
ties?
A. I felt he was in control of his mental faculties. He just
sounded to me very obsessively compulsive about this situ-
ation.
J.A. 789. The only objectively accurate characterization of this colloquy
is that it reflects Dr. Barker’s view of Gray as mentally sound, but per-
haps "obsessively" focused on the marital deterioration for which he bore
primary responsibility. However, as with the majority’s factual character-
izations throughout, its observations here reflect the strain of its efforts
to create evidence of a mental disorder that does not exist.
 GRAY v. BRANKER 35
attorney for a non-custodial parent in a divorce proceeding to protect
his client from attacks on her psychological well-being.

Of course, I agree with the majority that the affidavits could be
probative of Gray’s counsel’s performance to the extent that they
raised "red flags" that counsel should have seen, but did not. See id.
at 12. But a fair reading of the affidavits, as detailed herein, leads to
the conclusion that they fail to carry the weight the majority lades
them with; no reasonable reading of the affidavits could support the
majority’s self-serving conclusions that they "were . . . indications of
Gray’s mental or emotional disturbance" and that they "revealed that
Gray had a psychological problem." Id. at 16.

Due to the substantive weakness of this purported evidence of
Gray’s "psychiatric impairment" prior to the murder, the majority is
forced to rely on events after the murder and Gray’s subsequent
arrest. Gray was placed on suicide watch; fainted during a friend’s
visit; was described by friends as "damaged emotionally," J.A. 884,
and by the jail matron as "VERY depressed," J.A. 889-90; and was
described by his own attorney as "dazed" and "appear[ing to be] in
a state of shock," J.A. 240, 1702.2 None of these reactions can legiti-
mately be called unnatural or unexpected for a man just arrested for
the brutal murder of his wife. Instead of recognizing this, however,
the majority warps time in lumping these post-arrest behaviors into its
standardless framework for analyzing Gray’s mental health condition
prior to the murder.

In any event, far from behaving ineffectively, Gray’s counsel
responded immediately to the concerns raised by these post-arrest
behaviors, requesting that his client be committed to Dorothea Dix
Hospital to evaluate his capacity to proceed to trial.3 Gray was subse-
2
Although the attorney wrote in his commitment motion that Gray
appeared "unable to understand the gravity of the situation," J.A. 240, he
later clarified that he "had no doubts in my mind that [Gray] knew what
was going on," but that Gray "looked haggard, worn, worn out, tired,
frustrated, and kind of a realization that I’m in trouble. I mean it’s dazed
like you know, I’m realizing hey, this is serious," J.A. 1702-03.
3
The majority takes Gray’s counsel to task for failing to provide affida-
vits from Gray’s pending divorce case file to the staff at Dorothea Dix.
36 GRAY v. BRANKER
quently evaluated over the course of several weeks by hospital staff.
He presented originally as "tearful, upset, and anxious," oppositional
and challenging at times, and angry and frustrated when describing
his wife’s past behavior. J.A. 245-47. He was resistant to testing,
refused to cooperate in many procedures, and displayed arrogance and
verbal aggression towards hospital evaluators. The hospital’s initial
diagnostic impression of Gray was that he "presented an adjustment
reaction with mixed disturbance of emotions and conduct in relation
to current ongoing stress." J.A. 246. However, after dealing with Gray
for several weeks, the hospital’s clinical findings indicated "no evi-
dent psychosis nor any impairment in this patient’s ability to under-
stand his situation and surroundings," and "no findings to suggest
evidence of ongoing medical illness." J.A. 251. Dr. Patricio Lara, the
forensic psychiatrist who completed Gray’s discharge summary, con-
cluded his analysis and opinion as follows:

Available information describing this patient’s condition
around the time of the incident in question indicate that he
was under ongoing stress related to his family and marital
situation. Observations reported by friends describe evi-
dence of preoccupation and distress and no features to indi-
cate confusion nor any serious impairment in this patient’s
ability to function. Based on available information, it is my
opinion that this patient’s condition at the time in question
did not impair his basic understanding of the nature and
quality of his actions nor his ability to recognize right from
wrong. The magnitude of ongoing stressors may have con-

See Majority Op. at 5. Again, a closer look at the surrounding facts dem-
onstrates the reasonableness of counsel’s actions. The case file in ques-
tion was delivered to one of Gray’s trial attorneys a mere eleven days
prior to the murder, when he was retained to represent Gray in the
divorce case. The attorney had no occasion to review the case file prior
to the murder—he and Gray had arranged to go over the file the weekend
after Thanksgiving, but Gray murdered his wife the night before Thanks-
giving. Unlike the majority, I find nothing condemnable about an attor-
ney’s failure to immediately review a client’s divorce case file after that
client moots the case by brutally murdering his wife, or his failure to
extract from such a file affidavits of dubious relevance to his client’s
mental health.
 GRAY v. BRANKER 37
tributed to regression in behavior and reductions in impulse
control and control of emotions.

J.A. 252 (emphasis added). Dr. Lara then noted that Gray was, at the
time the evaluation was completed, "undergoing [a] significant
amount of distress and could benefit significantly from psychiatric
counseling." J.A. 252-53.4

Dr. Lara concluded the discharge summary with the following
statement, which the majority attempts to imbue with significance: "If
other sources of information become available to describe this
patient’s functioning and condition prior to [the murder], I would be
glad to review the information to expand my opinions if possible in
regards to this patient’s condition at the time of the alleged offense."
J.A. 253; see Majority Op. at 5, 12, 13, 15, 16, 21, 26 (referring to
this statement as, among other things, an "offer" to provide "addi-
tional assistance" and an "offer of mental health investigation assis-
tance"). The limits of this comment should be readily apparent. It
suggests only a willingness to revisit the diagnosis of "no impair-
ment" should additional evidence be forthcoming.5

The one potential "red flag" to be found in the hospital discharge
summary was nonspecific and equivocal: "The magnitude of ongoing
stressors may have contributed to regression in behavior and reduc-
tions in impulse control and control of emotions." J.A. 252 (emphasis
added). Contrary to the majority’s repeated reference to the "many
4
Once again, the majority conflates observations related to Gray’s
post-arrest behaviors with his condition prior to the murder. It should
surprise no one that Dr. Lara suggested psychiatric counseling for Gray
after his arrest for the brutal murder of his wife, and that Dr. Lara indi-
cated that Gray, in his post-arrest condition, might benefit from medica-
tion.
5
The majority also relies on the assertion that Dr. Lara’s assistance
would have been given "free of charge." Majority Op. at 13, 15. The only
support for this assertion is Dr. Lara’s affidavit, executed on June 7,
2006, thirteen years after Gray’s trial and six years after the MAR pro-
ceedings. This affidavit was considered by neither the MAR court nor the
district court and should not have been considered by this court on
habeas review. See Bell v. Jarvis, 236 F.3d 149, 171 n.13 (4th Cir. 2000).
38 GRAY v. BRANKER
signs" of Gray’s mental or emotional instability, there were in fact
few, if any, facts in this record that might have led a reasonable attor-
ney to believe that Gray was laboring under a diagnosable mental or
emotional impairment at the time that he murdered his wife.

After reviewing the Dorothea Dix discharge summary, Gray’s
attorney recommended that they retain an independent psychiatrist to
evaluate Gray and to be on standby for the trial and, if necessary, sen-
tencing. J.A. 1660, 1663-64. Gray refused, telling his paid attorney
"not to spend another f’ing penny on this trial, [and] that he didn’t
need a psychiatrist." J.A. 1666. Gray forbade his attorney to retain an
independent psychiatrist and declined to authorize the expenditure of
funds for a psychiatrist, even though he had authorized funds for other
experts, including a surveyor and an expert on jury selection. J.A.
1665-66.

Faced with an absence of evidence from the time period leading up
to the murder that Gray suffered from a diagnosable mental or emo-
tional disorder, and counsel’s appropriate response to the circum-
stances at the time, the majority is forced to rely on the opinion of a
doctor hired six years after the murder to support the conclusion it
seeks—that Gray suffered from a mental illness or acted with
impaired capacity when he killed his wife.

Gray was sentenced to death in December 1993. The testimony and
affidavit of Dr. James Bellard, a psychiatrist, were submitted at the
MAR hearing in 1999. Dr. Bellard interviewed Gray for a total of four
hours in January 1999. He reviewed only the records of the Grays’
family and marital therapist, the discharge summary from Dorothea
Dix, and the North Carolina Supreme Court holdings in Gray’s case.
(Bellard Aff., J.A. 275.)6 Based on this limited information, Dr. Bel-
lard opined that Gray "did at the time of the offense . . . and does at
the current time suffer from a psychiatric illness, specifically, Para-
6
The majority again engages in judicial puffing when it states that Dr.
Bellard "reviewed excerpts of the trial record." Majority Op. at 8. Dr.
Bellard reviewed the testimony of only one witness-—Dr. Gridley,
Gray’s son’s counselor—and the testimony of Gray himself. J.A. 1752,
1756. Tellingly, Dr. Bellard’s affidavit, which detailed the bases for his
psychiatric opinion, did not even mention these trial record excerpts.
 GRAY v. BRANKER 39
noid Personality Disorder (DSM Code 301.0)." Id. Dr. Bellard further
offered his opinion that Gray might suffer from other psychiatric dis-
orders and that expert psychiatric testimony would have been useful
to the jury in Gray’s case because it would have supported the sub-
mission of at least two statutory mitigating factors. J.A. 275-76.7

The state MAR court reasonably discounted Dr. Bellard’s testi-
mony both because his contact with Gray occurred six years after the
murder and because Dr. Bellard had not reviewed the trial testimony
of Gray’s friends, relatives, and associates describing Gray’s conduct
in the months leading up to the murder. J.A. 1562-63. Relying on
extensive evidence and testimony of no fewer than seven witnesses
with knowledge of Gray’s behavior prior to and at the time of the
murder, the MAR court concluded that available evidence, including
both the evidence actually presented at sentencing and that which
Gray contended should have been presented but was not, demon-
strated that Gray was in full control of his mental faculties and his
ability to reason at the time of the murder. J.A. 1566. To conclude
that the result of Gray’s trial would have been different if the "miss-
ing" evidence had been presented, the MAR court held, would require
"leap[s] of speculation." Id. The court therefore rejected Gray’s inef-
fective assistance claim, finding that he had failed to show either that
his attorney’s performance was deficient or that any deficiency
resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984).

II.

The serious errors in the majority’s cavalier recitation of the facts
are compounded by its perplexing legal analysis. Though the majority
sets forth the proper framework for AEDPA review, it wholly disre-
gards its application.
7
The factors Dr. Bellard noted were that "the capital felony was com-
mitted while the defendant was under the influence of mental and emo-
tional disturbance," and that "the capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the require-
ments of the law was impaired." J.A. 276.
40 GRAY v. BRANKER
Federal habeas relief is available to state prisoners only when state
court proceedings (1) "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States"; or (2)
"resulted in a decision that was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary
to" established federal law if the state court "applies a rule that contra-
dicts the governing" Supreme Court precedent or confronts facts that
are "materially indistinguishable" from those presented in a relevant
Supreme Court decision and arrives at the opposite result. Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).

An "unreasonable application" of clearly established federal law
"occurs when a state court identifies the correct governing legal prin-
ciple from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of [a] petitioner’s case." Rompilla v. Beard,
545 U.S. 374, 380 (2005) (internal quotations omitted). To warrant
the extreme remedy of federal intrusion into state criminal adjudica-
tions, it is not enough "[that] a federal court believes the state court’s
determination was incorrect"; the relevant question is "whether that
determination was unreasonable—a substantially higher threshold."
Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007) (citing Williams,
529 U.S. at 410). In habeas cases,

[f]actual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary, . . .
and a decision adjudicated on the merits in state court and
based on a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of
the evidence presented in the state-court proceeding.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Accordingly, this
court has recently reaffirmed that "federal courts are to accord consid-
erable deference to state courts in their review of state habeas pro-
ceedings." Meyer v. Branker, 506 F.3d 358, 365 (4th Cir. 2007)
(citing Williams, 529 U.S. at 412-13).

III.

The crux of Gray’s petition is his ineffective assistance of counsel
claim. To prevail on such a claim under Strickland, a petitioner must
 GRAY v. BRANKER 41
establish both that counsel’s performance was deficient and that the
deficiency prejudiced the defense. 466 U.S. at 687. The majority con-
cludes, as it must in order to grant relief, that the North Carolina
MAR court engaged in an unreasonable application of Supreme Court
precedent concerning both components of Strickland. The majority
first holds that Gray’s counsel rendered deficient performance "by
failing to investigate and develop, for sentencing purposes, evidence
that Gray suffered from a severe mental illness." Majority Op. at 2.
This portion of the majority opinion is grounded in its determination
that Gray’s attorneys’ investigation was "unreasonable under prevail-
ing professional norms." Id. at 16.

After arriving at its conclusion regarding deficient performance,
the majority further concludes that there is a reasonable probability
that this failure prejudiced the outcome at sentencing. Id. at 24. In the
majority’s view, the MAR court applied the wrong standard for evalu-
ating prejudice, and the MAR court’s decision was an "unreasonable
application of the proper standard." Id. at 19. I find each of these
holdings to strain reason and confound well-established law.

A.

The precedents governing our analysis of Strickland’s deficiency
prong are clear. An attorney’s performance is measured using the
standard of "reasonableness under prevailing professional norms."
Strickland, 466 U.S. at 688. "American Bar Association standards and
the like . . . are guides to determining what is reasonable." Id. The
Supreme Court has made clear that ABA standards such as the Amer-
ican Bar Association Guidelines for the Appointment and Perfor-
mance of Counsel in Death Penalty Cases ("ABA Guidelines") are
"only guides," not requirements. Id. (emphasis added); see also Rom-
pilla, 545 U.S. at 400; Wiggins v. Smith, 539 U.S. 510, 543 (2003).
Other guides might include, but are not limited to, state-specific stan-
dards and the actual courtroom practice of capital defenders in the rel-
evant jurisdiction or nationwide. See Marshall v. Cathel, 428 F.3d
452, 467-68 (3d Cir. 2005). In utilizing any guide to determine rea-
sonableness, Strickland requires courts to be "highly deferential" to
attorneys’ strategic choices to avoid the "distorting effects of hind-
sight." 466 U.S. at 689. This court recently explained,
42 GRAY v. BRANKER
In the sentencing context, this "highly deferential" standard
means that defense counsel have the flexibility to vary their
approach given their client’s unique circumstances. See
Lovitt v. True, 403 F.3d 171, 179 (4th Cir. 2005) ("In many
cases, counsel’s decision not to pursue a particular approach
at sentencing reflects not incompetence, but rather a sound
strategic choice."). This is exactly as it should be: the touch-
stone of effective representation must be sound, evidence-
based judgment, rather than a set of mandates counsel must
programmatically follow without deviation. "No particular
set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions regard-
ing how best to represent a criminal defendant." Strickland,
466 U.S. at 688-89.

Meyer, 506 F.3d at 371 (emphasis added).

The majority wisely concedes that the ABA Guidelines provide
only advice and suggestions of "avenue[s] of investigation that coun-
sel should consider," and that in this context they "can be relevant"
to determinations of what constitutes reasonable performance but
"certainly cannot be dispositive in and of themselves." Majority Op.
at 11 (citing Meyer, 506 F.3d at 372.) (emphasis added). In doing so,
the majority recognizes the Supreme Court’s admonition that pro-
grammatic rules "would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude counsel must
have in making tactical decisions. Indeed, the existence of detailed
guidelines for representation could distract counsel from the overrid-
ing mission of vigorous advocacy of the defendant’s cause." Strick-
land, 466 U.S. at 689 (internal citation omitted).

Nevertheless, by finding that an in-depth mental health investiga-
tion was required on these facts, the majority effectively calls for a
per se rule that such an investigation is required in every death penalty
case, a result both this court and the Supreme Court have expressly
rejected. See Meyer, 506 F.3d at 371-72; Strickland, 466 U.S. at 689.

The majority’s opinion "ignore[s] the very basic fact that different
circumstances often require different strategies." Meyer, 506 F.3d at
 GRAY v. BRANKER 43
372; see Strickland, 466 U.S. at 689; Frye v. Lee, 235 F.3d 897, 904
n.7 (4th Cir. 2000). Here, defense counsel, facing the circumstances
presented in Gray’s case, attempted to demonstrate at sentencing that
Gray, after a lifetime of good behavior, made a tragic mistake in a
moment of weakness due to the dissolution of his marriage and the
hospitalization of his mother. See J.A. 1439 (defense counsel’s state-
ment during closing argument that "overall, [the jury will] be looking
at a few days in 1992 versus a whole life time of 42 plus years"); J.A.
1442 (closing argument statements contrasting a lifetime of conform-
ing to society’s rules with a few "non-conform[ing]" events).8 The
mental or emotional disturbance mitigating factor played a role in this
overarching theory, as elucidated by the jury instruction suggested by
counsel, J.A. 1455, and the similar instruction ultimately given by the
court:

For this mitigating circumstance to exist it is enough that the
defendant’s mind or emotions were disturbed from any
cause and that he was under the influence of the disturbance
when he killed the victim.

You would find this mitigating circumstance if you find that
the defendant was under mental or emotional stress as a
result of his break up—the break up of the family marital
unit and/or the mental or emotional stress of the hospitaliza-
tion of his 82-year-old-blind mother and the uncertainty of
her prognosis; and that as a result of this, the defendant was
under the influence of mental or emotional disturbance
when he killed the victim.

J.A. 1475-76.

Defense counsel’s approach met with some success, leading the
jury to find thirteen of the twenty-one mitigating factors proffered,
including that Gray was a loving father, a loving son who had cared
for his mother at her time of need, a contributor to the community,
8
Much of the testimony at the sentencing hearing supported this theory
by highlighting the strength of the Grays’ marriage in its early years,
Gray’s excellent work in his career as a dentist, and Gray’s dedication
to his children as a little league coach and a loving father.
44 GRAY v. BRANKER
and that "[f]or 42 years prior to his separation from Roslyn Gray,
Defendant led an uneventful, law-abiding life posing no threat to his
family or community." J.A. 740. The jury did not find the mental
health mitigating factors, and it ultimately recommended death. How-
ever, that defense counsel did not prevail in avoiding a death sentence
does not transform its mitigation strategy into ineffective assistance.
See Strickland, 466 U.S. at 689 ("It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction or adverse sen-
tence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable."); Lovitt, 403 F.3d at 179 (not-
ing that, to pursue a particular theory at sentencing, though it may
ultimately fail, often "reflects not incompetence, but rather a sound
strategic choice").

The diligence and cautiousness of Gray’s counsel bear repeating.
They began their investigation immediately after the murder by hav-
ing Gray committed for a weeks-long evaluation at Dorothea Dix
Hospital. They later made the reasonable choice to forgo additional
in-depth mental health investigation based on Dr. Lara’s evaluation
and their overall assessment of the case, including all available evi-
dence, their own observations of their client, and their client’s refusal
to authorize funds for experts and his insistence that further psychiat-
ric evaluation was unnecessary.9

The circumstances here did not demand that Gray’s sentencing
strategy include procuring expert mental health testimony. Gray’s ini-
tial psychiatric evaluation found no evidence of impairment at the
time of the murder. Gray’s attorneys nevertheless approached Gray
about hiring a mental health expert to be "on standby," though they
did not necessarily intend to use psychiatric evidence. When Gray
refused to authorize funds for such an expense, they did not press the
9
Of course, counsel cannot blindly accept a client’s opinion regarding
his own mental health as fact. But it would be equally suspect for an
attorney to ignore a client whose self-assessment found abundant support
and minimal contraindication in the record and comported with the attor-
ney’s own reasoned judgment. See Strickland, 466 U.S. at 691 ("The rea-
sonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions.").
 GRAY v. BRANKER 45
matter. "[S]trategic choices made after less than complete investiga-
tions are reasonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investigation." Strickland,
466 U.S. at 690-91. "Strickland does not require counsel to investi-
gate every conceivable line of mitigating evidence no matter how
unlikely the effort would be to assist the defendant at sentencing."
Wiggins, 539 U.S. at 533. Contrary to the majority’s analysis, a fair
reading of this record leads to the inescapable conclusion that the
investigation undertaken by Gray’s counsel was reasonable.10

Counsel’s reasonable performance continued at sentencing. The
majority is simply incorrect in asserting that "Gray’s counsel did not
present (or attempt to present) any evidence at sentencing" that Gray
was under mental or emotional strain when he murdered his wife.11
Majority Op. at 25. In fact, the trial court found that sufficient evi-
dence had been presented to justify submission of the mental health
mitigating factors to the jury. A number of lay witnesses, at trial and
at sentencing, testified that Gray was under significant stress and act-
ing out of character at the time of the murder.12 This testimony sup-
10
Inexplicably, the majority mischaracterizes my opinion as failing to
"pursu[e] the . . . argument that Gray’s counsel undertook a reasonable
investigation." Majority Op. at 18. But this is precisely the argument I
am making—that counsel’s investigation was, under the circumstances
known to him at the time, reasonable.
11
The majority’s statement is most directly contradicted by a comment
from defense counsel Worthington’s closing argument at sentencing:
"You heard Charles Buchanan, a life-long friend talk about Mr. Gray’s
mother [whose hospitalization, Buchanan had explained, caused Gray
considerable distress], and this is the mitigating factor, the felony was
committed while the defendant was under the influence of mental or
emotional distress." J.A. 1430.
12
See, e.g., J.A. 1289 (Charles Buchanan, a friend of the Grays, testify-
ing at sentencing that the couple was very close throughout their mar-
riage, until early 1992, and that at that point the dissolution of the
marriage was "tearing [Gray] up"); J.A. 802 (Debbie Ryals, another
friend of the Grays, indicating that in the period leading up to the murder
Gray "didn’t appear to be in his right mind" and spoke violently about
his conflicts with his wife); J.A. 822 (Don Hollowell, another friend of
the Grays, testifying that after the couple’s separation Gray was "very
disturbed" and "didn’t have a grasp of what was going on").
46 GRAY v. BRANKER
ported defense counsel’s sentencing theory, in particular its argument
that the jury should find the mental or emotional disturbance mitigat-
ing factor because Gray "suffered from stress or a stressful situation
as the result of the break up of the family marital unit and as a result
of stress caused by the hospitalization of the defendant’s mother."
J.A. 1455.

The majority leaves no doubt that it would have taken a different
approach at sentencing. The majority’s preferred strategy, concocted
with the benefit of hindsight, grows out of its conviction that "mental
health mitigating factors . . . were Gray’s best hope of convincing the
jury that he did not deserve the death penalty." Majority Op. at 21.
The majority opines that "[t]he missing expert evidence on Gray’s
impaired mental condition would have provided the essential support
for these factors." Id. (emphasis added). In so deciding, the majority
faults Gray’s counsel because, the majority suggests, "There is no
indication that [defense counsel] understood that expert mental health
evidence could be critical to the jury’s decision on sentencing." Id. at
15 (emphasis added).

Regrettably, this speculation calls defense counsel to account for a
failure to pursue the majority’s preferred strategy, based on the major-
ity’s forecast of what evidence "would have" been provided and what
that evidence "could" have done in the jury’s minds. Contrary to the
majority’s assertion, however, there is no objective evidence that its
favored strategy was the "best," or even that its strategy offered
greater promise than defense counsel’s chosen course. Therefore, the
only way the majority here could rightly condemn defense counsel’s
actions would be if a per se rule required the presentment of expert
mental health mitigation evidence. But that is not the law. Meyer, 506
F.3d at 372 ("No per se rule requires the presentment of [mental
health mitigation] evidence at trial.").

The majority’s opinion, then, is precisely the type of overreaching
condemned by Strickland and its progeny. Today, two jurists, with the
benefit of hindsight, discard the high degree of deference owed to
defense counsel’s strategic choices, and replace it with an attempt to
mandate that sentencing strategies in death penalty cases always
include presentation of expert mental health testimony. The opinion
is grossly out of step with the flexible approach required under
 GRAY v. BRANKER 47
Supreme Court and Fourth Circuit precedent. See Meyer, 506 F.3d at
371-72; Strickland, 466 U.S. at 688-89. Under AEDPA’s highly def-
erential standard of review, there is no basis for any conclusion other
than that counsel’s approach to the investigation of Gray’s mental
health was marked by reasonable professional judgments, that coun-
sel’s performance was not deficient, and that the MAR court did not
unreasonably apply Supreme Court precedent in so finding.

B.

The majority’s opinion regarding prejudice is even more problem-
atic. William Robert Gray murdered his wife in the driveway of his
home after she begged a passerby for assistance. In the face of over-
whelming evidence of guilt, which it wisely does not address, the
majority is faced with the difficult task of showing that psychological
testimony might have made a difference. By any objectively reason-
able standard, it would not.

Under North Carolina law, a habeas petitioner "must demonstrate
a reasonable probability that at least one juror would have found that
his new mitigating evidence, combined with the existing mitigating
evidence, outweighed the aggravating circumstances." Buckner v.
Polk, 453 F.3d 195, 203 (4th Cir. 2006). This court applies a heavy
measure of deference to the MAR court’s conclusion regarding preju-
dice:

Even if on de novo review we might strike a different bal-
ance concerning the relative weight of the aggravating and
mitigating evidence, we may not disturb the MAR court’s
conclusion that [the petitioner] did not demonstrate preju-
dice unless we find that conclusion to be unreasonable in
light of clearly established Supreme Court precedent or in
light of the evidence before the MAR court. See
§ 2254(d)(1)-(2). When determining whether [the petitioner]
has satisfied one of these two standards, we must presume
the MAR court’s factual findings to be correct unless [the
petitioner] provides clear and convincing evidence to the
contrary. See § 2254(e)(1).

Id.
48 GRAY v. BRANKER
After an exhaustive hearing, the MAR court rejected Gray’s inef-
fective assistance claims in a 45-page order. The court "f[ou]nd that
the record contains persuasive testimony from State and defense wit-
nesses that defendant was calm, in control, and conducted himself
normally as a person in ‘their right mind’ throughout the period of the
contentious divorce proceedings and up to the murder itself." J.A.
1563. The witness testimony cited by the court "offered first-hand
observation and experience with defendant in the days and months
preceding the murder." J.A. 1564. In light of this evidence, the court
rejected Gray’s contention that there was a reasonable probability that
the presentation of other mental health evidence would have changed
the outcome of his trial. As a result, the court found that Gray failed
to satisfy Strickland’s prejudice prong.

The majority first suggests that the state court applied the incorrect
standard. In its order, the state court wrote, "Even with the proffered
medical testimony this [c]ourt finds it to be a leap of speculation that
the jury would necessarily have found the existence of the statutory
and nonstatutory mitigating circumstances." J.A. 1566. The majority
reads this statement out of context to show that the MAR court
required certainty when all that was required under Strickland was a
reasonable probability of a different outcome. However, the next sen-
tence in the MAR court opinion suggests that the MAR court plainly
understood the proper standard: "It is a further leap of speculation that
there is a reasonable probability that the result of defendant’s trial
would have been any different." Id. Despite its inartful word choice,
the MAR court applied the correct standard.

Next, the majority questions the MAR court’s failure to engage in
an explicit reweighing of all available mitigation evidence, including
expert mental health evidence, against the case in aggravation. In so
doing, the majority attempts to obscure the obvious: that other than
the proffered testimony of Dr. Bellard, which the MAR court fully
considered but ultimately found unpersuasive, there was no addi-
tional expert mental health evidence to add to the mitigating side of
the balance. Under these circumstances, an explicit discussion of the
reweighing process would have been farcical.13
13
The majority also ignores the significance of the Supreme Court’s
recent decision in Schriro v. Landrigan, 127 S. Ct. 1933 (2007). In
 GRAY v. BRANKER 49
The majority’s substitution of its factual findings for those of the
MAR court is legally impermissible, see Buckner, 453 F.3d at 203,
and makes a mockery of the principles of federalism underlying
habeas review. Moreover, the majority’s doe-eyed view of what Gray
might have presented and its resultant conclusion notwithstanding, a
dispassionate analysis of the entire case in mitigation suggests that it
would have been strengthened little, if at all, by the proffered mental
health evidence. Indeed, much of the omitted evidence would likely
have harmed Gray’s case as much as, or more than, it would have
helped.

Numerous lay witnesses, including Gray himself, testified at trial
and at sentencing in support of defense counsel’s theory that Gray had
been a loving father, son, and spouse, who became increasingly trou-
bled under the strain of the break-up of his marriage and the fading
health of his mother. Additional lay witness testimony to these issues
would have been duplicative, and therefore must be discounted under
our precedent. See Buckner, 453 F.3d at 207. See also Bowie v.
Branker, 512 F.3d 112, 121 (4th Cir. 2008). Furthermore, in evaluat-
ing the possible prejudice resulting from counsel’s failure to procure
additional testimony on these topics, one must recognize that the
existing testimony regarding Gray’s erratic and overly emotional
behavior during the couple’s separation accompanied observations
that he was in full control of his mental faculties at the time of the
murder. See, e.g., J.A. 822-24, 831. Therefore, additional lay testi-
mony in this vein likely would also have been double-edged. See
Moody v. Polk, 408 F.3d 141, 152 (4th Cir. 2005).

The majority fails to recognize the centrality of this abundant lay
witness testimony to defense counsel’s mitigation theory. Counsel

Schriro, the Supreme Court emphasized that reviewing courts must
assess reasonableness from the perspective of the state postconviction
court at the time it made its decision. Schriro, 127 S. Ct. at 1942. When
the MAR court issued its decision in this case, it was not objectively
unreasonable for a state postconviction court to conclude that a defendant
could not establish prejudice after refusing to allow his counsel to obtain
mental health evidence in support of the case in mitigation. See id. The
majority’s analogy to Rompilla, Majority Op. at 15, in support of the
contrary conclusion is misguided; Rompilla was unavailable to the MAR
court at the time it made its decision.
50 GRAY v. BRANKER
chose to focus on Gray’s mental and emotional stress and chose not
to attempt to demonstrate the existence of a diagnosable mental or
emotional impairment. To support its chosen theory, counsel was able
to rely on numerous firsthand observations of Gray in the time period
before the murder. The available evidence from medical profession-
als, suggesting that Gray did not suffer from a diagnosable mental ill-
ness, only bolstered counsel’s choice to focus on lay witness
testimony. See J.A. 789 (Dr. Barker, commenting that "[he] felt
[Gray] was in control of his mental faculties. He just sounded to me
very obsessively compulsive about this situation."); J.A. 252 (Dr.
Lara’s evaluation, summarizing, "[I]t is my opinion that this patient’s
condition at the time in question did not impair his basic understand-
ing of the nature and quality of his actions nor his ability to recognize
right from wrong," but that "[t]he magnitude of ongoing stressors may
have contributed to regression in behavior and reductions in impulse
control and control of emotions.").

Nevertheless, the majority holds that defense counsel’s failure to
procure expert witness testimony prejudiced Gray because the sup-
posedly "missing" expert testimony—in particular, the testimony of
Dr. Bellard—would have demonstrated that Gray suffered from Para-
noid Personality Disorder at the time of the murder.14

The majority fails to acknowledge several glaring substantive
weaknesses of its assertion that expert evidence would have aided
Gray. First, the expert evidence ostensibly missing from the case in
mitigation would likely have been double-edged. For example, had
defense counsel called Dr. Lara, the forensic psychiatrist from Doro-
thea Dix, to provide expert testimony in mitigation, he could have tes-
tified to the initial diagnostic impression of Gray as presenting "an
adjustment reaction with mixed disturbance of emotions and conduct
14
The majority’s star witness, Dr. Bellard, acknowledged that paranoid
personality disorder requires evaluation of an individual’s long-term pat-
terns and functioning, and manifests itself by late adolescence or early
adulthood. J.A. 1753. Such a diagnosis would thus cut directly against
defense counsel’s mitigation theory that Gray was a normal, healthily
functioning adult and a loving father, son, and husband, up until the dis-
solution of his marriage and his mother’s hospitalization. See supra Part
III.A.
 GRAY v. BRANKER 51
in relation to current ongoing stress." J.A. 246. However, he would
have also had to acknowledge that observing Gray shortly after the
murder and his subsequent arrest presented "an extreme situation that
may [have] exaggerate[d] personality traits to a level that may [have]
appeare[d] pathological." J.A. 251. Of course, he would also have had
to admit that the hospital found "no evident psychosis nor any impair-
ment in this patient’s ability to understand his situation and surround-
ings," and "no findings to suggest evidence of ongoing medical
illness." Id. In addition, he would have been constrained by his own
opinion, included in the discharge summary, "that [Gray’s] condition
at the time in question did not impair his basic understanding of the
nature and quality of his actions nor his ability to recognize right from
wrong." J.A. 252. In the best-case scenario for Gray, testimony by Dr.
Lara would have been internally inconsistent and would have also
severely undercut the proffered testimony of Dr. Bellard. Our prece-
dent demands that we discount such equivocal mental health evi-
dence. See Bowie, 512 F.3d at 121 (holding that equivocal mental
health evidence failed to demonstrate "a reasonable probability that
the jury would not have recommended death"); Moody, 408 F.3d at
152.

Second, Gray failed to present any evidence to contradict the MAR
court’s reasoned decision to discount the proffered expert testimony
of Dr. Bellard.15 Even were the MAR court wrong to discount this tes-
15
The majority suggests that the MAR court’s reasons for discounting
Dr. Bellard’s testimony were "objectively unreasonable." Majority Op. at
22. The first factor in the MAR court’s decision was the fact that Dr. Bel-
lard’s opinion, based on a total of four hours spent with Gray, took place
six years after the murder. I fail to see how the brevity of the evaluation
and the significant time gap between the murder and the evaluation were
"objectively unreasonable" factors for the MAR court to have consid-
ered. The MAR court also found it significant that "Dr. Bellard had not
reviewed the trial testimony which set forth defendant’s actions and con-
duct in the days and months leading up to the murder . . . as well as the
friends relatives, and associates of defendant." J.A. 1562. Instead of rec-
ognizing the reasonableness of discounting Dr. Bellard’s testimony on
this basis, the majority instead highlights the sliver of the trial record that
Dr. Bellard did review: the testimony of one witness, Gray’s son’s coun-
selor; the testimony of Gray himself; and two affidavits. That Dr. Bellard
52 GRAY v. BRANKER
timony, the evidence the majority finds that the jury "would have
heard" from Dr. Bellard, Majority Op. at 21, pales in comparison to
the evidence presented in cases in which prejudice has been found.
See Williams, 529 U.S. at 395 & n.19 (finding prejudice from coun-
sel’s failure to present evidence of the defendant’s "nightmarish child-
hood," which included criminal neglect and physical abuse of the
defendant by his parents); Wiggins, 539 U.S. at 536 (finding prejudice
from counsel’s failure to alert the jury to the defendant’s borderline
mental retardation and severe childhood physical and sexual abuse).

Neither Gray nor the majority has shown the state MAR court’s
conclusions respecting potential prejudice on the available body of
evidence to be unreasonable in light of clearly established Supreme
Court precedent, see § 2254(d)(1)-(2), or rebuttable by clear and con-

performed this limited review does nothing to lessen the import of the
evidence Dr. Bellard failed to review and the reasonableness of the MAR
court’s recognition of the resulting limits of Dr. Bellard’s testimony.
Finally, the majority grasps at straws in noting that "[t]he DSM-IV
diagnostic criteria . . . nowhere states, as the MAR court asserted, that
interviewing other individuals ‘is important to making the diagnosis.’"
Majority Op. at 22 (quoting J.A. 1562). The MAR court wrote, and Dr.
Bellard agreed, that "[t]he testimony or observations of individuals with
knowledge of defendant’s behavior and personality during defendant’s
late adolescence and early adulthood is important to making the diagno-
sis arrived at by Dr. Bellard." J.A. 1562; see J.A. 1753. The MAR court
then commented, "This is noted by the manual Dr. Bellard himself uti-
lizes, the . . . DSM-IV." Id. at 1562-63. The majority pounces on this
line, saying that "the MAR court drastically mischaracterized the diag-
nostic requirements of the DSM-IV." Majority Op. at 22. However,
assuming the DSM-IV does not make the MAR court’s point directly, the
MAR court’s statement was a fair inference from Dr. Bellard’s testimony
and not remotely suggestive of any objective unreasonableness in the
MAR court’s opinion. See J.A. 1753 (testimony of Dr. Bellard, admitting
that the DSM-IV requires an evaluation of an individual’s long-term pat-
terns and functioning; that paranoid personality disorder, the diagnosis
given Gray by Dr. Bellard using the DSM-IV, usually manifests by late
adolescence or early adulthood; and that it therefore would have been
useful to talk to people who knew Gray during this time-period in his
life).
 GRAY v. BRANKER 53
vincing contrary evidence, see § 2254(e)(1). Instead, finding no rea-
sonable basis for an assault on the state MAR court’s opinion under
AEDPA, the majority departs from the statutorily prescribed bounda-
ries that should cabin its review. So situated, and free to maneuver
without the nettlesome requirements of statute, precedent, and stan-
dards of review, the majority casts aside the MAR court’s opinion and
conducts its own analysis in the first instance, concluding that Gray’s
mitigation case, with Dr. Bellard’s opinion added, would have been
"quite powerful." Majority Op. at 23.16 In so concluding, it ignores the
heavy measure of deference usually afforded defense counsel’s strate-
gic decisions, instead deciding on its own what strategy presented
"Gray’s best hope of convincing the jury that he did not deserve the
death penalty." Majority Op. at 21. With its preferred result in sight,
the majority "weighs" a "powerful" mitigation case of its own making
against the state’s evidence in support of the death penalty and con-
cludes, unsurprisingly, that there is a reasonable probability that the
jury would have returned with a different sentence.

Contrary to the majority’s analysis, given the deferential AEDPA
standard of review, the substantive weakness of the new evidence,
and the failure of Gray and the majority to rebut the MAR court’s
adverse treatment of Dr. Bellard’s opinion, our precedent dictates that
the MAR court’s findings on prejudice should have been allowed to
stand. See Buckner, 453 F.3d at 207.

IV.

For the foregoing reasons, I dissent from the portion of the majority
opinion reversing the judgment of the district court. I concur in the
majority opinion to the extent it affirms the district court’s judgment.
16
The majority speculates that Gray’s counsel "could have introduced
expert testimony such as that of Dr. Bellard . . . ," and then further specu-
lates about what a jury "would have heard from such an expert." Majority
Op. at 21 (emphasis added). The majority cannot now manufacture a
hypothetical expert super-witness who would have given Gray helpful
testimony while somehow avoiding the deficiencies noted by the MAR
court in its decision, after full consideration, to discount Dr. Bellard’s
opinion.